EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS IS AN EMPLOYMENT AGREEMENT, dated as of August 19, 2004
(this "Employment Agreement"), by and between XX Xxxx'x Corporation, a Delaware
corporation (the "Company"), and Xxxxxx X. Xxxxx ("Xxxxx").
Background
X. Xxxxx currently serves as a member of the Board of
Directors of the Company (the "Board").
B. The Company desires to retain Xxxxx to perform certain
services for the Company and Xxxxx is willing to perform such services, on terms
more fully set forth below.
Terms
In consideration of the covenants set forth herein, and
intending to be legally bound hereby, the parties agree as follows:
1. Employment. The Company hereby employs Xxxxx, and Xxxxx
hereby accepts employment with the Company (the "Employment"), upon the terms
and subject to the conditions set forth in this Employment Agreement.
2. Employment Period. The term of Xxxxx'x employment under
this Employment Agreement shall commence on the date first written above and
shall terminate one year after such date (the "Employment Period"); provided,
that Xxxxx may resign at any time prior to the expiration of the Employment
Period upon prior written notice to the Company. Upon Xxxxx'x resignation, all
obligations of the Company under this Employment Agreement (other than any
obligations with respect to the payment of accrued and unpaid Salary and expense
reimbursement through the date of Xxxxx'x resignation of employment hereunder)
shall terminate.
3. Duties. Xxxxx shall provide strategic business advice and
related assistance to the senior management of the Company as Xxxxx and the
Board shall agree from time to time ("Strategic Advice"). Strategic Advice shall
include without limitation a review of the Company's strategic and operating
plans, annual budgets and forecasts and advice regarding actual and prospective
capital provider relationships
4. Extent of Services. During the Employment Period, Xxxxx
shall make himself reasonably available for consultation with the Company's
senior management for up to a maximum of 25 days per calendar quarter at
locations that are mutually agreeable to Xxxxx and the Company.
5. Compensation and Benefits.
(a) Salary. The Company shall pay Xxxxx an annual salary of
$250,000 (the "Salary") during the Employment Period, payable in equal monthly
installments at such times as the Company pays its executive officers.
(b) Office Expense Reimbursement; Secretarial Support. To
aid in the provision of Xxxxx'x duties, during the Employment Period, the
Company shall (i) reimburse Xxxxx for his documented cost of renting office
space in the amount of up to $45,000 per annum, payable in monthly installments
and (ii) provide Xxxxx with a full-time secretary, who shall be an employee of,
and whose salary and benefits shall be paid by, the Company.
(c) Other Expense Reimbursements. The Company shall pay or
reimburse Xxxxx for all documented reasonable out-of-pocket expenses (including
expenses of travel and accommodations) incurred or paid by Xxxxx in connection
with the performance of Xxxxx'x duties hereunder.
(d) Xxxxx shall be entitled to participate in benefits
plans available to the Company's executive officers.
6. Confidentiality.
(a) Except as necessary for the proper performance of
Xxxxx'x duties and responsibilities hereunder or as authorized in writing by the
Company, Xxxxx agrees that during such time as Xxxxx provides services to the
Company and at all times thereafter, Xxxxx will not, directly or indirectly,
disclose, furnish, make available or use, sell or exploit any Proprietary
Information or aid, encourage or allow any other person or entity to gain
possession of or access to, or to use, sell or exploit any Proprietary
Information.
(b) As used herein, "Proprietary Information" means all
information of a business or technical nature that relates to the Company,
including work product, trade secrets, know-how, copyrights, trademarks, service
marks, patents (and applications therefor) and other intellectual property and
plans, forecasts, financial information and customer or supplier names or data,
and also includes business information of another person or entity which
discloses the same to the Company. The term "Proprietary Information" does not
include information that (i) becomes available to Xxxxx from a source other than
the Company or its agents (so long as Xxxxx does not know such information is
subject to a non-disclosure agreement), (ii) becomes publicly disseminated
(other than by Xxxxx) or (iii) is ordered by a court of competent jurisdiction
to be disclosed.
(c) Xxxxx understands that the Company from time to time
receives confidential information from other persons or entities and, in
connection therewith, the Company may enter into agreements with such parties
restricting or prohibiting use, transfer or disclosure of such information.
After receiving a written notice from the Company that the Company has entered
into such an agreement, together with copy of such agreement, Xxxxx agrees not
to use, transfer or disclose such information; provided, however, that Xxxxx may
use, transfer or disclose such information if such information (i) becomes
available to Xxxxx from a source other than the Company or its agents (so long
as Xxxxx does not know such information is subject to a non-disclosure
agreement), (ii) becomes publicly disseminated or (iii) is ordered by a court of
competent jurisdiction to be disclosed.
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(d) Xxxxx agrees not to disclose to the Company or use in
the performance of Xxxxx'x responsibilities to the Company any confidential
information or intellectual property which has been marked as proprietary to
another person or entity (including any former or other employer) unless the
Company has received the requisite authorization, and Xxxxx is instructed by the
Company to do so. Xxxxx also agrees not to use in the creation or development of
any work product any intellectual property not owned by the Company unless
specifically instructed to do so by the Company.
7. Documents. Any and all documents, notebooks, papers, plans,
designs, computer storage media and other material containing any work product
or Proprietary Information shall belong to the Company, and Xxxxx agrees to
deliver to the Company any or all of the foregoing in Xxxxx'x possession or
control upon the Company's request.
8. Remedies. Xxxxx expressly acknowledges that the remedy at
law for any breach of Sections 6 and 7 will be inadequate and that upon any such
breach or threatened breach, the Company shall be entitled as a matter of right
(without the need for posting any bond or other security) to injunctive relief
in any court of competent jurisdiction, in equity or otherwise, and to enforce
the specific performance of Xxxxx'x obligations under these provisions without
the necessity of proving the actual damage to the Company or the inadequacy of a
legal remedy. The rights conferred upon the Company by the preceding sentence
shall not be exclusive of, but shall be in addition to, any other rights or
remedies which the Company may have at law, in equity or otherwise.
9. Indemnification. The Company hereby agrees that it shall
indemnify and hold harmless Xxxxx to the fullest extent permitted by law from
and against any and all liabilities, costs, claims and expenses, including all
costs and expenses incurred in defense of litigation (including attorneys'
fees), arising out of the employment of Xxxxx hereunder (but excluding disputes
arising under this Employment Agreement), except to the extent arising out of or
based upon the gross negligence or willful misconduct of Xxxxx or a breach of
any of Xxxxx'x agreements, covenants or warranties hereunder. Costs and expenses
incurred by Xxxxx in defense of such litigation (including attorneys' fees)
shall be paid by the Company in advance of the final disposition of such
litigation upon receipt by the Company of (a) a written request for payment, (b)
appropriate documentation evidencing the incurrence, amount and nature of the
costs and expenses for which payment is being sought, and (c) an undertaking
adequate under applicable law made by or on behalf of Xxxxx to repay the amounts
so paid if it shall ultimately be determined that Xxxxx is not entitled to be
indemnified by the Company under this Agreement, including but not limited to as
a result of such exception. The Company and Xxxxx will consult in good faith
with respect to the conduct of any such litigation, and Xxxxx'x counsel shall be
selected with the consent of the Company. This Section 9 shall survive the
expiration or termination of this Agreement.
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10. Taxes. The Company shall withhold all employment related
taxes, including income and social security taxes, which are required to be
withheld by law, and shall duly and timely remit such taxes on Xxxxx'x behalf to
the applicable tax authorities.
11. Governing Law. This Employment Agreement shall be governed
by and interpreted under the laws of the Commonwealth of Pennsylvania, without
reference to principles of conflict of laws thereunder.
12. Assignment. Neither this Employment Agreement nor any
rights or liabilities hereunder may be assigned or transferred by Xxxxx or the
Company.
13. Notices. All notices and other communications required or
permitted hereunder shall be made in writing by hand-delivery, facsimile, or air
courier guaranteeing overnight delivery to the other party at the following
addresses:
If to Xxxxx, to:
Xx. Xxxxxx X. Xxxxx
c/o NTC Group 0
Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
If to the Company, to:
XX Xxxx'x Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: President
or to such other address as any such party may designate in a written notice
served upon the other party in the manner provided herein. All notices and other
communications required or permitted hereunder shall be deemed duly given and
received when delivered by hand, if personally delivered; when delivered if
delivered via facsimile transmission; on the day next succeeding the date of
mailing if timely delivered to an express air courier guaranteeing overnight
delivery.
14. Entire Agreement. This Employment Agreement constitutes
the entire agreement with respect to the subject matter hereof among the parties
hereto and replaces and supersedes as of the date hereof, any and all prior oral
and written agreements and understandings between the parties hereto. This
Employment Agreement may only be modified by an agreement in writing executed by
Xxxxx and the Company.
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15. Severability. If any term or provision of this Employment
Agreement or the application thereof to any person or circumstance shall, to any
extent, be held invalid or unenforceable by a court of competent jurisdiction,
the remainder of this Employment Agreement or the application of any such term
or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be effected thereby, and each term and
provision of this Employment Agreement shall be valid and enforceable to the
fullest extent permitted by law.
16. Waiver of Breach. Failure by either party to enforce any
provision of this Employment Agreement shall not constitute a waiver by that
party of its right to enforce that provision or any other provision of this
Employment Agreement. No delay or omission by the Company or Xxxxx in exercising
any right, remedy or power hereunder or existing at law or in equity shall be
construed as a waiver thereof, and any such right, remedy or power may be
exercised by the Company or Xxxxx from time to time and as often as may be
deemed expedient or necessary by the Company or Xxxxx in its sole discretion.
17. Counterparts. This Employment Agreement may be executed in
two counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
18. Headings. The headings preceding the text of the sections
and subsections hereof are inserted solely for convenience of reference, and
shall not constitute a part of this Employment Agreement, nor shall they affect
its meaning, construction or effect.
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IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the day and year first written above.
XX XXXX'X CORPORATION
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President & CEO
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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