EXHIBIT 4.6
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of September 30, 1999,
between Unico, Inc., a Delaware corporation (the
"Company") and Xxx Xxxxxxx, (the "Executive"). The
parties hereto agree as follows:
1. Employment.
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(a) Agreement to Employ. Upon the terms and subject
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to the conditions of this Agreement, the Company shall
hereby employ the Executive and the Executive hereby
agrees to be employed by the Company.
(b) Term of Employment. Subject to Section 5, the
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Company shall employ the Executive pursuant to the terms
hereof for the period commencing on the date Executive
begins exclusive employment with the Company (the
"Start Date"), which shall be the earliest date
reasonably possible for Executive, and ending on June
30, 2000, provided that the Executive's employment
with the Company shall be deemed to be automatically
renewed upon renegotiated terms and conditions for an
additional one-year period on each of June 30, 2000 and
June 30, 2001 unless either party hereto shall have given
the other party written notice that such party does not
intend to renew the Agreement as of such date at least
thirty (30) days in advance of the date on which this
Agreement would otherwise automatically be renewed.
The period during which the Executive is employed
pursuant to this Agreement, including any renewal
thereof in accordance with this Section (1)(b), shall
be referred to as the "Employment Period."
2. Position and Duties.
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During the Employment Period, the Executive shall
serve as Chairman, President and CEO of the Company
and the Executive shall have the duties,
responsibilities and obligations customarily assigned
to individuals serving in the position or positions in
which the Executive serves hereunder. The Executive shall
report to the Board of Directors of the Company. The
Executive shall devote his full time to the services
required of him hereunder, except for vacation time
and reasonable periods of absence due to sickness,
personal injury or other disability, and shall use her
best efforts, judgment, skill and energy to perform such
services in a manner consonant with the duties of his
position and to improve and advance the business and
interests of the Company.
3. Compensation.
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Salary and Bonus. The Company shall pay the
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Executive a base salary at an annual rate of $100,000.
The Company shall pay the Executive such base salary
in deferred installments as the parties may agree.
In consideration of accepting employment with the
Company, the Company will issue 250,000 shares of
common stock upon the signing of this agreement. The
Company agrees that the shares of common stock of the
Company comprising the Signing Bonus shall be issued
to the Employee as of the date of the execution of the
Agreement, and such shares of common stock of the
Corporation shall immediately be registered under S-8
as soon as possible to make the securities available
to be traded on the OTC Electronic Bulletin Board,
without limitation or restriction.
4. Benefits and Vacation.
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During the Employment Period, the Executive shall be
eligible to participate in the health, disability and
life insurance plans sponsored or maintained by the
Company for the benefit of its senior executive
corporate officers to the extent that the Executive is
eligible to participate in any such plans under the
generally applicable provisions thereof. The Company
may, in its discretion, amend or terminate any such
plans in accordance with the terms thereof. During the
Employment Period, the Executive shall be entitled to
three weeks of paid vacation annually. Unused vacation
days for any given calendar year may be carried over
to the subsequent year, or, at Executive's option, may be
surrendered to the Company for a cash payment equal to
(a) the quotient of the number of unused vacation days
surrendered, divided by 365, times (b) Executive's
base salary for the year in which such unused vacation
day was initially accrued.
5. First Anniversary Employment Review.
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(a) Within the thirty (30) days prior to and the
thirty (30) days after the first anniversary of the
Start Date (such sixty-day period is hereinafter
referred to as the "Review Period"), the Company shall
have the option to terminate Executive's employment
with the Company. If the Company terminates Executive's
employment with the Company during the Review Period,
(i) at the Company's option, Executive shall
be entitled to receive severance pay equal to the base
salary payable to the Executive under Section 3(a) for
the six months following such termination (payable
monthly).
(ii) Section 11 hereof shall continue in full
force and effect.
(b) Within the thirty (30) day period prior to the
first anniversary of the Start Date, the Executive
shall have the option to terminate Executive's
employment with the Company. If the Executive so
terminates his employment with the Company,
(i) Executive shall receive no severance pay.
(ii) Section 11 hereof shall continue in full
force and effect.
6. Termination of Employment.
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If the Executive's employment with the Company
terminates earlier than upon the expiration of the
Employment Period, other than a termination pursuant
to Section 6 hereof, the Executive shall be entitled to
receive the following payments under the following
circumstances:
(a) Death. Upon the death of the Executive, the
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Executive's spouse, if any, or his estate shall receive
the Executive's base salary payable in the year of his
death pursuant to Section 3(a) hereof, life insurance
benefits and a pro rata portion of the Executive's
Bonus that would have been payable pursuant to Section
3(a) hereof with respect to the fiscal year in which the
Executive died. Such pro rata portion shall be
determined by multiplying (i) the total Bonus that the
Executive would have received in respect of the year
of his death by (ii) the quotient of the number of
days in such year prior to his death, divided by 365.
Such pro rata Bonus payment will be payable at the
same time that the full Bonus would have been payable
to the Executive pursuant to Section 3(a) hereof.
(b) Disability. Upon the Disability of the
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Executive, he shall receive his Earned Salary, any
disability benefits payable under any disability
program in which he participates, any other benefits
under any benefit plan of the Company to which he is
entitled pursuant to the terms of such plan and a
portion of the Executive's Bonus that would have been
payable pursuant to Section 3(a) hereof with respect
to the fiscal year in which the Executive became
disabled. Such pro rata portion shall be determined by
multiplying (i) the total Bonus that the Executive
would have received in respect of the year of his
Disability by (ii) the quotient of the number of days in
such year prior to his Disability, divided by 365.
Such pro rata Bonus payment will be payable at the
same time that the full Bonus would have been payable to
the Executive pursuant to Section 3(a) hereof.
(c) Termination for Cause or a Resignation Other
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than for Good Reason. If the Executive's employment
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terminates due to a Termination for Cause or a
Resignation Other than for Good Reason, the Executive
shall receive his Earned Salary and any other benefits
under any benefit plan of the Company to which he is
entitled pursuant to the terms of such plan.
(d) Termination Without Cause or Resignation for
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Good Reason. If the Executive's employment terminates due
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to a Termination Without Cause or a Resignation for Good
Reason the Executive shall receive severance pay equal
to the base salary (but not the bonus) payable to the
Executive under Section 3(a) for the six months
immediately following such termination or resignation.
Notwithstanding anything herein to the contrary, in no
event shall the Company be obligated to pay any amount
to the Executive with respect to any period after such
six-month period.
7. Definitions.
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For purposes of this Agreement, capitalized terms have
the following meanings:
"Cause" shall mean a termination by the Company due to
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(i) the continued failure (other than any such failure
resulting from incapacity due to reasonably documented
physical or mental illness) by the Executive
substantially to perform his duties, responsibilities
or obligations as an officer, director or employee of the
Company or any of its subsidiaries after having been
given written notice of such failure to perform,
listing in reasonable specificity such failures, and
after having failed to improve such performance within
the time period (which shall have been a reasonable time
period) specified in such notice or (ii) the engaging
by the Executive in serious misconduct which is
material to the performance by the Executive of his
duties and obligations for the Company, including,
without limitation, gross negligence, dishonesty, willful
malfeasance, gross insubordination or gross misconduct
or conviction of a felony or the entering of a plea of
nolo contendere to a felony.
"Disability" shall mean the Executive's inability for
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more than six months within any 12-month period of
performing his duties, responsibilities or obligations
as an officer, director or employee of the Company on a
full-time basis because of a physical, mental or
emotional incapacity resulting from injury, sickness
or disease and within 30 days after written notice of
termination has been given to the Executive, the
Executive shall not have returned to the full-time
performance of his duties, responsibilities and
obligations. The date of termination in the case of a
termination for "Disability" shall be the last day of
the aforementioned 30-day period.
"Earned Salary" means the base salary earned, but unpaid,
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for services rendered to the Company on or prior to the
date of disability, resignation or termination of the
Executive's employment, as the case may be. Earned
Salary shall be paid in a single lump sum as soon as
practicable, but in no event more than 30 days
following such date.
"Resignation for Good Reason" means a resignation by the
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Executive as a result of any of the following:
(a) a material breach by the Company of its
obligations under this Agreement with respect to the base
salary, Bonus, benefits or vacation to which the
Executive is entitled under Sections 3 and 4 hereof;
or
(b) the taking of any action by the Company that
would substantially diminish the aggregate value of
the benefits provided to the Executive under the benefit
plans of the Company that may be in effect at such
time in which he was participating, other than any such
reduction which is (i) required by law, (ii)
implemented in connection with a general concessionary
arrangement affecting all employees or affecting the
group of senior corporate executive employees or (iii)
generally applicable to all similarly situated
beneficiaries of such plans.
"Resignation Other than for Good Reason" shall be any
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resignation other than a Resignation with Good Reason.
"Termination for Cause" shall be any termination of the
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Executive's employment by the Company for Cause.
"Termination Without Cause" shall be any termination of
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the Executive's employment by the Company other than a
Termination for Cause.
8. Full Discharge of Company Obligations. The amounts
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payable to the Executive pursuant to Section 5 or Section
6 following termination of his employment shall be in
full and complete discharge of the Executive's rights
under this Agreement and any other claims he may have
in respect of his employment by the Company or any of its
subsidiaries. Such amounts payable shall constitute
liquidated damages with respect to any and all such
rights and claims and, upon the Executive's receipt of
such amounts, the Company shall be released and
discharged from any and all liability to the Executive
in connection with this Agreement or otherwise in
connection with the Executive's employment with the
Company and its subsidiaries.
9. Noncompetition and Confidentiality.
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(a) Noncompetition. If the Executive's employment
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with the Company terminates during the Employment Period
for any reason (other than a resignation by Executive
pursuant to Section 6(c) or due to his death or
Disability), during the six-month period following
such termination or resignation of the Executive (the
"Restriction Period"), the Executive shall not become
associated with any entity, whether as a principal,
partner, employee, consultant or shareholder (other
than as a holder of not in excess of 1% of the
outstanding voting shares of any publicly traded
company), that is actively engaged in the any business
that directly competes with any business, that at the
time of termination, The Company was actively engaged
in.
(b) Confidentiality. Without the prior written
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consent of the Company, except for disclosures of
Confidential Information (as defined below) in the
ordinary course of business that, individually and in
the aggregate, are not materially injurious to the
Company or any of its subsidiaries, and except to the
extent required by an order of a court having
competent jurisdiction or under subpoena from an
appropriate government agency, the Executive shall not
disclose any trade secrets, customer lists, computer
programs, drawings, designs, marketing or sales plans,
management organization information (including data
and other information relating to members of the Board or
management), operating policies or manuals, business
plans, financial records or other financial,
commercial, business or technical information relating
to the Company or any of its subsidiaries or information
designated as confidential or proprietary that the
Company or any of its subsidiaries may receive
belonging to suppliers, customers or others who do
business with the Company or any of its subsidiaries
(collectively, "Confidential Information") to any
third person unless such Confidential Information has
been previously disclosed to the public by the Company
or is in the public domain (other than by reason of
the Executive's breach of this Section 11(b)). If the
Executive receives an order of a court or a subpoena
requiring the Executive to disclose any Confidential
Information, as described above, the Executive shall
promptly deliver a copy of such order or subpoena to
the Company and the Company shall use its best efforts to
assist the Executive in responding thereto.
(c) Company Property. Promptly following the
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Executive's termination of employment, the Executive
shall return to the Company all property of the
Company, and all copies thereof in the Executive's
possession or under his control, including, without
limitation, all Confidential Information, in whatever
media.
(d) Nonsolicitation of Employees. During the
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Employment Period and the Restriction Period, the
Executive shall not directly or indirectly induce any
employee of the Company or any of its subsidiaries to
terminate employment with such entity, and will not
directly or indirectly, either individually or as owner,
agent, employee, consultant or otherwise, employ or
offer employment to any person who is or was employed
by the Company or a subsidiary thereof unless such person
shall have ceased to be employed by such entity for a
period of at least six months.
e) Certain Payments to the Executive during the
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Restriction Period. If the Executive's employment with
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the Company is terminated due to a Termination for Cause
or a Resignation Other than for Good Reason, then, as
consideration for the covenants set forth in Section
11(a) and Section 11(d), the Company shall pay the
Executive, for the duration of the Restriction Period,
the salary (but not the bonus) he otherwise would have
received under Section 3(a). If the Executive's
employment with the Company is terminated due to a
Termination Without Cause or a Resignation for Good
Reason, then, as consideration for the covenants set
forth in Section 11(a) and Section 11(d), the Company
shall pay the Executive the compensation set forth in
Section 8(d). If the Executive's employment is
terminated pursuant to Section 6(b), then the receipt
by the Executive of the compensation elected by the
Company pursuant to Section 6(c) will constitute the
consideration for the covenants set forth in Section
11(a) and Section 11(d). If the Restriction Period
extends beyond the Employment Period, the Company
shall continue to pay the Executive his then current
salary until the end of the Restriction Period for
that portion of the Restricted Period, which extends
beyond the Employment Period. Except in the case of a
Termination Without Cause or such Resignation for Good
Reason, the Company may elect at any time during the
Restriction Period upon thirty (30) days prior written
notice to discontinue such salary payments, in which
event the Executive shall be released from any further
obligation to comply with the provisions of Sections
11(a) and 11(d) herein. If the Company fails to
timely make any payment due under this Section 11(e)
and if such failure continues for ten (10) business days
after notice by the Executive to the Company of such
failure, the Executive shall be released from any
further obligation to comply with the provisions of
Sections 11(a) and 11(d) herein.
(f) Injunctive Relief with Respect to Covenants. The
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Executive acknowledges and agrees that the covenants and
obligations of the Executive with respect to
noncompetition, nonsolicitation, confidentiality and
Company property relate to special, unique and
extraordinary matters and that a violation of any of the
terms of such covenants and obligations will cause the
Company and its subsidiaries irreparable injury for
which adequate remedies are not available at law.
Therefore, the Executive agrees that the Company and its
subsidiaries shall be entitled to an injunction,
restraining order or such other equitable relief
(without the requirement to post bond) as a court of
competent jurisdiction may deem necessary or
appropriate to restrain the Executive from committing
any violation of the covenants and obligations
contained in this Section 11. These injunctive
remedies are cumulative and are in addition to any
other rights and remedies the Company or its subsidiaries
may have at law or in equity.
10. Miscellaneous.
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(a) Binding Effect. This Agreement shall be binding
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on the Company and any person or entity which succeeds to
the interest of the Company (regardless of whether
such succession occurs by operation of law, by reason
of the sale of all or a portion of the Company's stock or
assets or a merger, consolidation or reorganization
involving the Company). This Agreement shall also
inure to the benefit of the Executive's heirs, executors,
administrators and legal representatives.
(b) Assignment. Except as provided under Section
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12(a) above, neither this Agreement nor any of the rights
or obligations hereunder shall be assigned or
delegated by either party hereto without the prior
written consent of the other party.
(c) Entire Agreement. This Agreement supersedes any
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and all prior agreements between the parties hereto, and
constitutes the entire agreement between the parties
hereto with respect to the matters referred to herein,
and no other agreement, oral or otherwise, shall be
binding between the parties unless it is in writing and
signed by the party against whom enforcement is
sought. There are no promises, representations,
inducements or statements between the parties other
than those that are expressly contained herein. The
Executive acknowledges that she is entering into this
Agreement of her own free will and accord, and with no
duress, that she has read this Agreement and that she
understands it and its legal consequences. No parol
or other evidence may be admitted to alter, modify or
construe this Agreement, which may be changed only by
a writing signed by the parties hereto.
(d) Severability; Reformation. In the event that
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one or more of the provisions of this Agreement shall
become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be
affected thereby. In the event any of Section 11(a),
(b), (c), (d) or (e) is not enforceable in accordance
with its terms, the Executive and the Company agree
that such Section, or such portion of such Section,
shall be reformed to make it enforceable in a manner
which provides the Company the maximum rights permitted
under applicable law.
(e) Waiver. Waiver by either party hereto of any
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breach or default by the other party of any of the terms
of this Agreement shall not operate as a waiver of any
other breach or default, whether similar to or
different from the breach or default waived. No waiver
of any provision of this Agreement shall be implied
from any course of dealing between the parties hereto or
from any failure by either party hereto to assert their
rights hereunder on any occasion or series of occasions.
(f) Notices. Any notice required or desired to be
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delivered under this Agreement shall be in writing and
shall be delivered personally, by courier service, by
registered mail, return receipt requested, or by telecopy
and shall be effective upon dispatch to the party to
whom such notice shall be directed, and shall be
addressed as follows (or to such other address as the
party entitled to notice shall hereafter designate in
accordance with the terms hereof):
If to the Company:
Unico, Inc.
Harbor Park
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
(g) Amendments. This Agreement may not be altered,
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modified or amended except by a written instrument signed
by each of the parties hereto.
(h) Headings. Headings to sections in this
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Agreement are for the convenience of the parties only and
are not intended to be part of or to affect the
meaning or interpretation hereof.
(i) Counterparts. This Agreement may be executed in
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counterparts, each of which shall be deemed an original
but both of which together shall constitute one and the
same instrument.
(j) Withholding. Any payments provided for herein
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shall be reduced by any amounts required to be withheld
by the Company from time to time under applicable
Federal, state or local income or employment tax laws
or similar statutes or other provisions of law then in
effect.
(k) Governing Law. This Agreement shall be governed
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by the laws of the State of Connecticut, without
reference to principles of conflicts or choice of law
under which the law of any other jurisdiction would
apply.
IN WITNESS WHEREOF, the Company has caused this Agreement
to be executed by its duly authorized officer and the
Executive has hereunto set her hand as of the day and
year first above written.
Unico, Inc.
/s/ Xxx X. Xxxxxxx
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By: Xxx X. Xxxxxxx.
Title: Chief Executive Officer
The Executive:
/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
