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Exhibit 10.1
EMPLOYMENT AGREEMENT
Employment Agreement dated and effective as of April 1, 1997, (this
"AGREEMENT"), between ILLINOIS SUPERCONDUCTOR CORPORATION, a Delaware
corporation (with its successors and assigns, referred to as the "COMPANY"),
and XXXXXX X. XXXXXXXXXX ("XXXXXXXXXX").
PRELIMINARY STATEMENT
The Company desires to employ Xxxxxxxxxx, and Xxxxxxxxxx wishes to be
employed by the Company, upon the terms and subject to the conditions set forth
in this Agreement. The Company and Xxxxxxxxxx also wish to enter into the
other agreements set forth in this Agreement, all of which are related to
Xxxxxxxxxx'x employment under this Agreement.
AGREEMENT
Xxxxxxxxxx and the Company therefore agree as follows:
1. EMPLOYMENT FOR TERM. The Company hereby employs Xxxxxxxxxx and
Xxxxxxxxxx hereby accepts employment with the Company for a 12 month period
beginning on April 21, 1997, (the "TERM"), or upon the earlier termination of
the Term pursuant to Section 6 below. The end of the Term for any reason shall
end Xxxxxxxxxx'x employment under this Agreement, but shall not terminate
Xxxxxxxxxx'x or the Company's other obligations in this Agreement.
2. POSITION AND DUTIES. During the Term, Xxxxxxxxxx shall serve as the
Vice President of Sales and Marketing of the Company. During the Term,
Xxxxxxxxxx shall also hold such other positions and titles as the Board of
Directors of the Company (the "BOARD") may determine from time to time. During
the Term, Xxxxxxxxxx shall devote substantially all of his business time and
best efforts to his duties as an employee of the Company.
3. COMPENSATION.
(a) BASE SALARY. The Company shall pay Xxxxxxxxxx a base salary,
beginning on the first day of the Term and ending on the last day of the Term,
of not less than $150,000 per annum, payable at least monthly on the Company's
regular pay cycle for professional employees.
(b) BONUSES. Subject to approval by the Board, which approval shall not
be withheld unreasonably, Xxxxxxxxxx shall be eligible to receive a bonus of one
percent of all Net Revenues received by the Company from the sale of radio
frequency filters during the Term of this Agreement. Net Revenues shall include
the amount collected on the sale of radio frequency filters, but always
excluding any invoiced or received sums for freight, shipping, handling, sales
tax, use tax, installation work or any other non filter revenues. Xxxxxxxxxx'x
eligibility for any bonus under this Section 3(b) shall cease upon termination
of this Agreement. Xxxxxxxxxx acknowledges that he shall not be eligible for,
entitled to, or a
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procuring cause of any Net Revenues received by the Company on any sales after
the date this Agreement terminates.
(c) ADDITIONAL BASE SALARY AND BONUSES. Sections 3(a) and 3(b) establish
minimum salary and bonus grant levels for Xxxxxxxxxx during the Term, and shall
not preclude the Board from awarding Xxxxxxxxxx a higher salary at any time,
nor shall they preclude the Board from awarding Xxxxxxxxxx bonuses or other
compensation at the discretion of the Board.
(d) SIGN-ON BONUS. The Company shall pay Xxxxxxxxxx a sign on bonus
payment of $25,000. This payment shall be payable on the same day that
Xxxxxxxxxx receives his first payment of base salary on the Company's regular
pay cycle for professional employees.
(e) STOCK OPTIONS. On and as of the date of this Agreement (the "Grant
Date"), the corporation shall grant to Xxxxxxxxxx non-qualified options (the
"Options") under the Corporation's Amended and Restated 1993 Stock Option Plan,
as it may be amended from time to time (the "Plan") to purchase up to 50,000
shares of the Corporation's common stock, (a) exercisable upon vesting at a
price per share equal to 100% of the fair Market Value (as defined in the Plan)
of the Corporation's common stock on the Grant date, (b) vesting on the last
day of the calendar month in which the first anniversary of the Grant Date
occurs, with respect to 12,500 shares of common stock, and vesting on the last
day of each of the following thirty-six calendar months, with respect to
1,041-2/3 shares of common stock each month, in each case provided that
Xxxxxxxxxx is employed by the Corporation at each respective date of vesting,
and (c) otherwise subject to the terms and conditions of the Plan.
(f) RELOCATION BONUS. The Company shall pay Xxxxxxxxxx a one time
relocation bonus of $40,000 provided that Xxxxxxxxxx closes on the purchase of
a primary residence in the Chicago area on or before August 31, 1997. This
payment shall be payable to Xxxxxxxxxx at closing or on the first normally
scheduled pay day following Xxxxxxxxxx'x notification of the home purchase to
the Company at Xxxxxxxxxx'x option. Provided, however, the time will be
extended for up to 3 months if Xxxxxxxxxx has established permanent residence
in the Chicago area by August 31, 1997.
(g) REIMBURSEMENT OF RELOCATION EXPENSES. Upon presentation of receipts
or other appropriate proofs of payment acceptable to the Company, the Company
will reimburse Xxxxxxxxxx for the reasonable costs, in accordance with
Company's travel expense policies, he incurs for: (i) a maximum of three
house-hunting trips for Xxxxxxxxxx and spouse, to include child-care while
Xxxxxxxxxx and spouse are taking such trips; (ii) sales commission and
reasonable closing costs paid by Xxxxxxxxxx to sell his house in Grapevine,
Texas; (iii) a maximum of two "points" (2% of the mortgage principal) paid by
Xxxxxxxxxx to obtain a mortgage for the purchase of a house in the Chicago
area; (iv) reasonable closing costs paid for the purchase of a house in the
Chicago area; (v) the movement of household goods; and (vi) travel expenses of
Xxxxxxxxxx, spouse and children for the final move to the new house. The
Company will advance to Xxxxxxxxxx the sums pursuant to items (iii), (ii) and
(v) upon verification of the required amounts so that Xxxxxxxxxx can pay for
such items when required.
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(h) COMMUTING AND LIVING EXPENSES. During the time that Xxxxxxxxxx is
employed by the Company, but has not yet moved his residence to the Chicago
area, the Company will reimburse reasonable travel expenses in accordance with
the Company's travel expense policies for Xxxxxxxxxx to live in Chicago area as
needed and to return to Texas once per week. Such reimbursement of commuting
and living expenses will cease as of and for commuting completed by December 1,
1997, and no further reimbursement of commuting and living expenses will be
available after December 1, 1997.
(i) REIMBURSEMENT TO COMPANY. Xxxxxxxxxx agrees that if he resigns his
employment with the Company, or if his employment is terminated for Cause (as
defined in Section 7(a) below), within 12 months after the beginning of the
Term (as stated in Section 1 above):
[a] The Company shall have no obligation to provide any remaining
reimbursement to Xxxxxxxxxx for Relocation Expenses (as defined,
respectively, in Section 3(g));
[b] Xxxxxxxxxx shall reimburse the Company pro rata for any sums
provided to him for Relocation Expenses (as defined in Section
3(g)), computed on the basis of the number of days remaining in
the period between the date of Xxxxxxxxxx'x resignation or
termination for Cause, and the first anniversary of the beginning
of the Term;
[c] Xxxxxxxxxx shall reimburse the Company for the full amount of the
Sign-on Bonus and any relocation Bonus (as defined, respectively
in Sections 3(d) and 3(f)) paid to Xxxxxxxxxx as of the date of
his resignation or termination for Cause;
[d] Xxxxxxxxxx authorizes the Company to deduct from any compensation
earned but unpaid to him under Sections 3(a), 3(b) or 3(c) as of
the date of his resignation or termination for Cause, all or any
part of any reimbursement that Xxxxxxxxxx may owe to the Company
under Sections 3(i)[b] or 3(i)[3] above.
4. EMPLOYEE BENEFITS. During the Term, Xxxxxxxxxx shall be entitled to
the employee benefits, including vacation, health and other insurance benefits,
and deferred compensation arrangements, made available by the Company to any
other employee of the Company.
5. EXPENSES. The Company shall reimburse Xxxxxxxxxx for actual
out-of-pocket expenses incurred by him in the performance of his services for
the Company (in accordance with the Company's policy for such reimbursements
applicable to the Company's executive officers on the same terms generally
offered to such officers), upon the receipt of appropriate documentation of
such expenses.
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6. TERMINATION.
(a) GENERAL. The Term shall end immediately upon Xxxxxxxxxx'x death. The
Company may end the Term at any time for any reason or no reason, with or
without "Cause" (as defined in Section 7(a) below) in the absolute discretion
of the Board (but subject to the Company's obligations under this Agreement).
(b) NOTICE OF TERMINATION. Promptly after it ends the Term, the Company
shall give Xxxxxxxxxx notice of termination, including a statement of whether
the termination was for Cause. The Company's failure to give notice under this
Section 6(b) shall not, however, affect the validity of the Company's
termination of the Term.
7. SEVERANCE BENEFITS.
(a) "CAUSE" DEFINED. "Cause" means (i) willful malfeasance or willful
misconduct by Xxxxxxxxxx in connection with his employment; (ii) Xxxxxxxxxx'x
gross negligence in performing any of his duties under this Agreement; (iii)
Xxxxxxxxxx'x conviction of, or entry of a plea of guilty to, or entry of a plea
of nolo contendre with respect to, any crime other than a traffic violation or
infraction which is a misdemeanor; (iv) Xxxxxxxxxx'x willful breach of any
written policy applicable to all employees adopted by the Company concerning
conflicts of interest, political contributions, standards of business conduct
or fair employment practices, procedures with respect to compliance with
securities laws or any similar matters, or adopted pursuant to the requirements
of any government contract or regulation; or (v) material breach by Xxxxxxxxxx
of any of his agreements in this Agreement.
(b) TERMINATION WITHOUT CAUSE. If the Company ends the Term prior to the
conclusion of the 12 month period beginning on April 21, 1997, other than for
Cause, then the Company shall pay severance to Xxxxxxxxxx in a maximum amount
equal to Xxxxxxxxxx'x base salary per annum in effect on the day the Term ends,
for a period equal to the greater of: (i) 90 days from the date that the
Company ends the Term, or (ii) the number of days between the date that the
Company ends the Term and the end of the 12-month period beginning on April 21,
1997. The severance shall be payable in proportionate amounts at least monthly
on the Company's regular pay cycle for professional employees. Notwithstanding
anything to the contrary in this Agreement, no severance shall be owing or
payable to Xxxxxxxxxx in the event that his employment ends at the conclusion
of the Term ending 12 months after the period beginning on April 21, 1997.
(c) TERMINATION FOR ANY OTHER REASON. If the Company ends the Term for
Cause, or if Xxxxxxxxxx resigns as an employee or officer of the Company, or if
Xxxxxxxxxx dies, then the Company shall have no obligation to pay Xxxxxxxxxx
any amount, whether for salary, benefits, bonuses, or other compensation or
expense reimbursements of any kind, accruing after the end of the Term, and
such rights shall, except as otherwise required by law, be forfeited
immediately upon the end of the Term.
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8. CONFIDENTIALITY, OWNERSHIP, AND COVENANTS OF NON-COMPETITION AND
NON-SOLICITATION.
(a) "COMPANY INFORMATION" AND "INVENTIONS" DEFINED. "COMPANY INFORMATION"
means all information, knowledge or data of or pertaining to (i) the Company,
and (ii) any other person, firm, corporation or business organization with
which the Company may do business during the Term, that is not in the public
domain (and whether relating to methods, processes, techniques, discoveries,
pricing, marketing or any other matters). Xxxxxxxxxx acknowledges that it is
not necessary for the Company to label information as "Confidential" or to
utilize expensive security systems (although the Company may do so in its
discretion) in order to maintain the confidentiality of such information.
"INVENTIONS" collectively refers to any and all inventions, trade secrets,
ideas, processes, formulas, source and object codes, data, programs, other
works of authorship, know-how, improvements, discoveries, developments,
designs, and techniques regarding any of the foregoing.
(b) CONFIDENTIALITY. Except as provided in the next two sentences,
Xxxxxxxxxx covenants and agrees that all Company Information shall be kept
secret and confidential at all times during and after the end of the Term and
shall not be used or divulged by him outside the scope of his employment as
contemplated by this Agreement, except as the Company may otherwise expressly
authorize by action of the Board. In the event that Xxxxxxxxxx is required by
a court or governmental agency of competent jurisdiction to disclose any of the
Company Information, Xxxxxxxxxx will promptly so notify the Company so that the
Company may seek a protective order or other appropriate remedy and/or waive
compliance with this Agreement.
(c) OWNERSHIP. Xxxxxxxxxx hereby assigns to the Company all of
Xxxxxxxxxx'x right (including patent rights, copyrights, trade secret rights,
and all other rights throughout the world), title and interest in and to
Inventions, whether or not patentable or registrable under copyright or
similar statutes, made or conceived or reduced to practice or learned by
Xxxxxxxxxx, either alone or jointly with others, during the course of the
performance of services for the Company. Xxxxxxxxxx shall also assign to, or
as directed by, the Company, all of Xxxxxxxxxx'x right, title and interest in
and to any and all Inventions, the full title to which is required to be in the
United States government by a contract between the Company and the United
States government or any of its agencies. The provisions of Sections 8(a),
8(b) and this Section 8(c) are not intended to supersede or limit the effect of
any prior confidentiality or proprietary rights agreements previously executed
by Xxxxxxxxxx.
(d) PERIOD DEFINED. "NON-COMPETITION PERIOD" means the period beginning on
the day following the date of termination of Xxxxxxxxxx'x employment with the
Company and ending on the second anniversary of the day following the date of
termination of Xxxxxxxxxx'x employment with the Company.
(e) COVENANTS OF NON-COMPETITION AND NON-SOLICITATION. Xxxxxxxxxx
acknowledges that his services pursuant to this Agreement are unique and
extraordinary, that
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the Company will be dependent upon Xxxxxxxxxx for the development and growth of
its business and related functions, and that he will continue to develop
personal relationships with significant customers of the Company and to have
control of confidential information concerning, and lists of customers of, the
Company. Xxxxxxxxxx agrees that the customer relationships he develops will
occur because of the Company's relationship with its customers and clients and
because of Xxxxxxxxxx'x employment with the Company. Xxxxxxxxxx further
acknowledges that the business of the Company is international in scope and
cannot be confined to any particular geographic area of the United States. For
the foregoing reasons, Xxxxxxxxxx covenants and agrees that during the
Non-Competition Period Xxxxxxxxxx shall not, directly or indirectly, engage in,
be financially interested in, represent, render any advice or services to, or
be employed by, affiliated or in any way associated with, any other business
(conducted for profit or not for profit) that is engaged in the development or
production of (i) high temperature superconducting materials, (ii) radio
frequency filter devices, or (iii) fault current limiter devices, in any such
case for or related to uses which are or could reasonably deemed to be
competitive with the current or currently contemplated business of the Company
in the world. For the reasons acknowledged by Xxxxxxxxxx at the beginning of
this Section 8(e), Xxxxxxxxxx additionally acknowledges, covenants, and agrees
that, during the Non-Competition Period, Xxxxxxxxxx shall not, directly or
indirectly, whether on his own behalf or on behalf of any other person or
entity, in any manner (A) solicit the business of or otherwise contact in any
commercial capacity any person or entity that is, or is reasonably anticipated
to become, at the date of termination, a customer, supplier, or contractor of
the Company for the purpose of obtaining business of the type performed by the
Company, or (B) solicit for employment or engagement any persons who were
officers or employees of the Company upon the date of termination of his
employment hereunder, or at any time during a ninety-day period preceding such
date, or aid any competitive business organization in any attempt to hire any
such officers or employees of the Company.
(f) EQUITABLE REMEDIES. Xxxxxxxxxx acknowledges, covenants and agrees
that, in the event he shall violate any provisions of this Section 8, the
Company will not have an adequate remedy at law and will therefore be entitled
to enforce such provision by temporary or permanent injunctive or mandatory
relief obtained in an action or proceeding without the necessity of posting
any bond of any kind whatsoever, and without prejudice to any other remedies
that may be available at law or in equity. The foregoing restrictions shall
not preclude Xxxxxxxxxx from the ownership of not more than three percent (3%)
of the vote securities of any corporation whose voting securities are
registered under Section 12(g) of the Securities Exchange Act of 1934, even if
its business competes with that of the Company.
(g) If, as a result of Xxxxxxxxxx'x actual or threatened breach of any of
his obligations under this Agreement, the Company retains counsel for the
purposes of enforcing or preventing a breach of any provisions hereof,
including without limitation, instituting any suit or proceeding to enforce any
provision hereof, by seeking any judicial remedy, then the Company shall be
entitled, in addition to such other relief as may be granted, to recover from
Xxxxxxxxxx all costs and expenses incurred by the Company, including without
limitations, its reasonable attorneys' fees.
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9. SUCCESSORS AND ASSIGNS.
(a) XXXXXXXXXX. This Agreement is a personal contract, and the rights and
interests that the Agreement accords to Xxxxxxxxxx may not be sold,
transferred, assigned, pledged, encumbered, or hypothecated by him. Xxxxxxxxxx
shall not have any power of anticipation, alienation or assignment of the
payments contemplated by this Agreement, all rights and benefits of Xxxxxxxxxx
shall be for the sole personal benefit of Xxxxxxxxxx, and no other person shall
acquire any right, title or interest under this Agreement by reason of any
sale, assignment, transfer, claim or judgment or bankruptcy proceedings against
Xxxxxxxxxx. Except as so provided, this Agreement shall inure to the benefit
of and be binding upon Xxxxxxxxxx and his personal representatives,
distributees and legatees.
(b) THE COMPANY. This Agreement shall be binding upon the Company and
inure to the benefit of the Company and of its successors and assigns,
including (but not limited to) any corporation that may acquire all or
substantially all of the Company's assets or business or into or with which
the Company may be consolidated or merged. This Agreement shall continue in
full force and effect in the event that the Company sells all or substantially
all of its assets, merges or consolidates, otherwise combines or affiliates
with another business, dissolves and liquidates, or otherwise sells or disposes
of substantially all of its assets. The Company's obligations under this
Agreement shall cease, however, if the successor to, the purchaser or acquiror
either of the Company or of all or substantially all of its assets, or the
entity with which the Company has affiliated, shall assume in writing the
Company's obligations under this Agreement (and deliver an executed copy of
such assumption to Xxxxxxxxxx), in which case such successor or purchaser, but
not the Company, shall thereafter be the only party obligated to perform the
obligations that remain to be performed on the part of the Company under this
Agreement.
10. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties concerning Xxxxxxxxxx'x employment with the Company and
supersedes all prior negotiations, discussions, understandings and agreements,
whether written or oral, between Xxxxxxxxxx and the Company relating to the
subject matter of this Agreement.
11. AMENDMENT OR MODIFICATION, WAIVER. No provision of this Agreement may
be amended or waived unless such amendment or waiver is agreed to in writing
signed by Xxxxxxxxxx and by a duly authorized officer of the Company other than
Xxxxxxxxxx. No waiver by any party to this Agreement of any breach by another
party of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of a similar or dissimilar condition or
provision at the same time, any prior time or any subsequent time.
12. NOTICES. All notices, demands or other communications of any kind to
be given or delivered under this Agreement shall be in writing and shall be
deemed to have been properly given if (a) delivered by hand, (b) delivered by a
nationally recognized overnight courier service, (c) sent by registered or
certified United States Mail, return receipt requested and first class postage
prepaid, or (d) facsimile transmission followed by a confirmation copy
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delivered by a nationally recognized overnight courier service. Such
communications shall be sent to the parties at their respective addresses as
follows:
If to Xxxxxxxxxx: Xxxxxx X. Xxxxxxxxxx
0000 Xxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
If to the Company: Illinois Superconductor Corporation
000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
with a copy to: Xxxxx X. Xxxxxx
Xxxxxxxxx & Xxxxxx
00 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Either party may change such address for delivery to the other party by
delivery of a notice in conformity with the provisions of this section
specifying such change. Notice shall be deemed to have been properly given (i)
on the date of delivery, if delivery is by hand, (ii) three (3) days after the
date of mailing if sent by certified or registered mail, (iii) one (1) day
after date of delivery to the overnight courier if sent by overnight courier,
or (iv) the next business day after the date of transmission by facsimile.
13. SEVERABILITY. If any provision of this Agreement or the application
of any such provision to any party or circumstances shall be determined by any
court of competent jurisdiction to be invalid and unenforceable to any extent,
the remainder of this Agreement or the application of such provision to such
person or circumstances other than those to which it is so determined to be
invalid and unenforceable shall not be affected, and each provision of this
Agreement shall be validated and shall be enforced to the fullest extent
permitted by law. If for any reason any provision of this Agreement containing
restrictions is held to cover an area or to be for a length of time that is
unreasonable or in any other way is construed to be too broad or to any extent
invalid, such provision shall not be determined to be entirely null, void and
of no effect; instead, it is the intention and desire of both the Company and
Xxxxxxxxxx that, to the extent that the provision is or would be valid or
enforceable under applicable law, any court of competent jurisdiction shall
construe and interpret or reform this Agreement to provide for a restriction
having the maximum enforceable area, time period and such other constraints or
conditions as shall be valid and enforceable under the applicable law.
14. SURVIVORSHIP. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
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15. HEADINGS. All descriptive headings of sections and paragraphs in this
Agreement are intended solely for convenience of reference, and no provision of
this Agreement is to be construed by reference to the heading of any section or
paragraph.
16. WITHHOLDING TAXES. All salary, benefits, reimbursements and any other
payments to Xxxxxxxxxx under this Agreement shall be subject to all applicable
payroll and withholding taxes and deductions required by any law, rule or
regulation of and federal, state or local authority.
17. APPLICABLE LAW: JURISDICTION. The laws of the State of Illinois
shall govern the interpretation, validity and performance of the terms of this
Agreement, without reference to rules relating to conflicts of law. Any suit,
action or proceeding against Xxxxxxxxxx with respect to this Agreement, or any
judgment entered by any court in respect thereof, may be brought in any court
of competent jurisdiction in the State of Illinois, as the Company may elect in
its sole discretion, and Xxxxxxxxxx hereby submits to the nonexclusive
jurisdiction of such courts for the purpose of any such suit, action,
proceeding or judgment.
18. INTERPRETATION AND CONSTRUCTION. Each of the parties to this
Agreement has been represented by their own counsel, each has reviewed and
approved this Agreement as executed, and neither party shall be charged with
the responsibility of having drafted any provision of this Agreement so as to
cause any rule of strict construction to be applied against such party.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
ILLINOIS SUPERCONDUCTOR CORPORATION
By: /S/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
Executive Vice President and
Chief Operating Officer
/S/ XXXXXX X. XXXXXXXXXX
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XXXXXX X. XXXXXXXXXX
4/1/97
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