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Exibit 10.22
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of the 22nd day of
May, 1996, by and between Topro, Inc., a Colorado corporation (the "Employer"
or "Company") and Xxxxxxxx Xxxxxx ("Employee").
Pursuant to an Agreement of Merger ("Merger Agreement") dated May
17th, 1996, Visioneering Holding Corporation, ("VI"), a company of which
Employee is a key employee, will become and will operate as a subsidiary of the
Company;
The Company believes Employee has particular knowledge and expertise
concerning the management and business of VI, and desires to employ Employee to
serve as an employee of VI following the Company's acquisition of VI pursuant
to the terms of this Agreement, and Employee desires to be so employed;
In consideration of the mutual covenants contained in this Agreement,
the Employer agrees to employ the Employee and the Employee agrees to be
employed by the Employer upon the terms and conditions hereinafter set forth.
ARTICLE I
TERM OF EMPLOYMENT
1.1 Term. The term of this Agreement shall be five months and
will commence on the Closing Date of the Merger Agreement. If the Merger
Agreement is not consummated, this Agreement will be void ab initio.
1.2 Employment Following Term of Agreement. At the end of the
term of this Agreement employee will beomce a consultant to Employer in
accordance with the consulting agreement at Appendix I.
ARTICLE II
DUTIES OF THE EMPLOYEE
2.1 Duties. The Employee shall be employed as Senior Technical
Consultant of VI, a wholly-owned subsidiary of Topro, with responsibilities and
authority as are customary for such position (including, but not limited to,
those duties as from time to time may be assigned to Employee by the President
of VI). Employee shall be subject to the general direction and control of the
Board of Directors and President of the Company.
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2.2 Extent of Duties. Employee shall devote all of her working
time, efforts, attention and energies to the business of the Employer and shall
perform such services on behalf of VI and the Company as his position shall
require.
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Exibit 10.22
ARTICLE III
COMPENSATION OF THE EMPLOYEE
3.1 Base Compensation. The Employee shall receive a base salary
of $120,000 per annum, paid according to Employer's normal practices. This
salary shall be reviewed annually and may be increased from time to time in the
discretion of the Employer's Board of Directors. If increased, this salary
shall not be decreased thereafter during the term of this Agreement without the
consent of the Employee. The salary provided for in this subsection shall in
no way be deemed exclusive and shall not prevent Employee from participating in
any other compensation or benefit plan of Employer.
3.2 Bonus Compensation. Employee shall be entitled to receive
bonus compensation as determined by the Company's Board of Directors.
3.3 Benefits. Employee shall be entitled to vacation, sick leave
and paid holiday benefits as provided to him by VI prior to the date of this
Agreement, and shall receive benefits not less favorable than those, if any,
provided to him by VI prior to the date of this Agreement with regard to other
employee benefit plans and employee benefits, including any retirement,
pension, profit-sharing, stock option, insurance, hospital or other plans and
benefits. Participation in any benefit plans shall be in addition to the
compensation otherwise provided for in this Agreement.
3.4 Expenses. Employee shall be entitled to prompt reimbursement
for all reasonable expenses incurred by Employee in the performance of his
duties thereunder in accordance with the customary practices of the Company.
ARTICLE IV
NON-COMPETITION; CONFIDENTIALITY
4.1 Corporate Opportunities. The Employee will offer to the
Employer any investment or other opportunity in the process control and systems
integration industry (including without limitation software product
development) or in the other areas of business in which the Company operates of
which she may become aware. If the Board of Directors of the Employer refuses
the opportunity to participate in the investment or venture, the Employee may
do so as permitted by Section 4.2 hereof and otherwise only if Employee obtains
a consent to do so from a majority of the directors (excluding the Employee).
4.2 Passive Investment. The Employee may make passive investments
in companies involved in the process control industry or other industries in
which the Company operates, provided any such investment does not exceed a 5%
equity interest, unless Employee obtains a
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consent to acquire an equity interest exceeding 5% from a vote of a majority of
the directors (excluding the Employee).
4.3 No Competing Interests. Except as provided in Sections 4.1
and 4.2 hereof, the Employee may not participate in the process control or
systems integration industry or other areas of business in which the Company is
engaged during the term of this Agreement except through and on behalf of the
Company.
4.4 Covenant Not to Compete. For a period of 12 months after the
termination or expiration of this Agreement, or such longer period as the
Employee is entitled to receive salary continuation and/or severance payments
pursuant to Section 5.4 hereof, the Employee shall not own, manage, operate,
control, be employed by, participate in, or be connected in any manner with the
ownership, management, operation or control of any business which is engaged in
the type of business conducted by the Employer at the time this Agreement
terminates. In the event of the Employee's actual or threatened breach of this
paragraph, the Employer shall be entitled to a preliminary restraining order
and injunction restraining the Employee from violating its provisions. Nothing
in this Agreement shall be construed to prohibit the Employer from pursuing any
other available remedies for such breach or threatened breach, including the
recovery of damages from the Employee. Employer's ability to recover damages
from employee will be limited to a cumulative sum of $1,000,000 not including
attorney's fees and other costs.
4.5 Confidentiality.
a. The Employee recognizes and acknowledges that the
information, business, list of the Employer's customers and any other trade
secret or other secret or confidential information relating to Employer's
business as they may exist from time to time are valuable, special and unique
assets of Employer's business. Therefore, Employee agrees as follows:
(i) That during the term of this Agreement and
for a period of three years after its termination, Employee will hold in
strictest confidence and not disclose, reproduce, publish or use in any manner,
without the express authorization of the Board of Directors of the Employer,
any information, business, customer lists of other employees of Employer, or
any other secret or confidential matter relating to any aspect of the
Employer's business, except as such disclosure or use may be required in
connection with Employee's work for the Employer.
(ii) That upon request or at the time of leaving
the employ of the Employer the Employee will deliver to the Employer, and not
keep or deliver to anyone else, any and all notes, memoranda, documents and, in
general, any and all material relating to the Employer's business.
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Exibit 10.22
(iii) That the Board of Directors of Employer may
from time to time reasonably designate other subject matters requiring
confidentiality and secrecy which shall be deemed to be covered by the terms of
this Agreement.
b. The parties agree that the provisions of this Section 4.5
shall terminate or be inoperative as to particular information which (i)
becomes generally available to the public other than as a result of a
disclosure by Employee, or (ii) becomes available to Employee on a
non-confidential basis from a source other than the Company or its agents,
provided that such source is not bound by a confidentiality agreement with the
Company.
c. In the event of a breach or threatened breach by the Employee
of the provisions of this Section 4.5, the Employer shall be entitled to an
injunction (i) restraining the Employee from disclosing, in whole or in part,
any information as described above or from rendering any services to any
person, firm, corporation, association or other entity to whom such
information, in whole or in part, has been disclosed or is threatened to be
disclosed; and/or (ii) requiring that Employee deliver to Employer all
information, documents, notes, memoranda and any and all other material as
described above upon Employee's leave of the employ of the Employer. Nothing
herein shall be construed as prohibiting the Employer from pursuing other
remedies available to the Employer for such breach or threatened breach,
including the recovery of damages from the Employee. Employer's ability to
recover damages from employee will be limited to a cumulative sum of $1,000,000
not including attorney's fees and other costs.
ARTICLE V
TERMINATION OF EMPLOYMENT
5.1 Termination. The Employee's employment during the initial or
any renewal term of this Agreement may be terminated without any breach of
this Agreement only under the following circumstances:
a. Death. This Agreement shall terminate upon the
death of Employee.
b. Disability. The Employer may terminate this
Agreement upon the permanent disability of the Employee only in accordance with
Employer's policy applicable to other employees.
c. Cause. The Employer may terminate the Employee's
employment thereunder for Cause. For purposes of this Agreement, the Employer
shall have "Cause" to terminate the Employee's employment thereunder upon the
following: (1) the failure by the Employee substantially to perform his duties
thereunder (other than any such failure resulting from the Employee's
incapacity due to physical or mental illness), which failure is not
satisfactorily
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cured within 30 days after Employer delivers to Employee written demand for
substantial performance, specifying in detail the Employee's failure; (2)
willful misconduct by the Employee which is materially injurious to the
Employer, monetarily or otherwise; or (3) the willful violation by the Employee
of the provisions of this Agreement. For purposes of this Section, no act, or
failure to act, on the part of the Employee shall be considered "willful"
unless done, or omitted to be done, not in good faith and without reasonable
belief by her that her action or omission was in the best interest of the
Employer.
d. By Employer Other than for Cause. The Company
shall have the right to terminate Employee's employment thereunder other than
for cause upon written notification to Employee.
5.2 Notice of Termination. Any termination of the Employee's
employment by the Employer (other than termination pursuant to subsection 5.1
(a) above) shall be communicated by written Notice of Termination to the
Employee.
5.3 Date of Termination. "Date of Termination" shall mean (i) if
the Employee's employment is terminated by his death, the date of his death;
(ii) if the Employee's employment is terminated for cause, the date on which a
notice of termination is received by the Employee; and (iii) if the Employee's
employment is terminated for any other reason, the date specified in a Notice
of Termination by Employer, which date shall be no less than 30 days following
the date on which Notice of Termination is given.
5.4 Payment of Compensation Following Termination. Upon
termination of Employee's employment thereunder, the Company shall pay to
Employee all accrued but unpaid compensation due pursuant to Section 3 hereof.
Employee shall be entitled to receive payments as follows:
a. Following the termination of this Agreement pursuant
to Section 5.1(a), Employer shall pay to Employee's estate the base salary
payments which would otherwise be payable to Employee to the end of the month
in which her death occurs. This payment shall be in addition to life insurance
benefits, if any, paid to Employee's estate under policies for which the
Employer pays all premiums and Employee's estate is the beneficiary.
b. In the event of temporary or permanent disability of
the Employee as described in Section 5.1 (b) hereof, whether or not the
Employer elects to terminate this Agreement, Employee shall be entitled to
receive base salary payments for services through the Date of Termination and
such disability compensation and benefits, if any, as are payable to employees
generally in accordance with the policy of Employer.
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Exibit 10.22
c. Following the termination of this Agreement pursuant
to Section 5.1 (c) or due to voluntary termination by Employee, the Employee
shall be entitled to base salary payments for services through the Date of
Termination.
d. In the event this Agreement is terminated by Employer
pursuant to Section 5.1(d) hereof, Employee shall be entitled to be paid his
base salary for the balance of the term of the Agreement; provided, however,
that the Employer's obligation to make such payments shall cease as of the date
on which Employee accepts other full-time employment (which shall include self-
employment, engagement as an independent contractor or other professional
activity for which equivalent compensation is received).
5.5 Remedies. Any termination of this Agreement shall not
prejudice any other remedy to which the Employer or Employee may be entitled,
either at law, equity, or under this Agreement.
ARTICLE VI
GENERAL PROVISIONS
6.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
6.2 Arbitration. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof shall be settled by
arbitration in the City and County of Denver, Colorado in accordance with the
rules then existing of the American Arbitration Association and judgment upon
the award may be entered in any court having jurisdiction thereof.
6.3 Entire Agreement. This Agreement supersedes any and all other
Agreements, whether oral or in writing, between the parties with respect to the
employment of the Employee by the Employer. Each party to this Agreement
acknowledges that no representations, inducements, promises, or agreements,
orally or otherwise, have been made by either party, or anyone acting on behalf
of any party, that are not embodied in this Agreement, and that no agreement,
statement, or promise not contained in this Agreement shall be valid or
binding.
6.4 Successors and Assigns. This Agreement, all terms and
conditions thereunder, and all remedies arising here from, shall inure to the
benefit of and be binding upon Employer, any successor in interest to all or
substantially all of the business and/or assets of Employer, and the heirs,
administrators, successors and assigns of Employee. Except as provided in the
preceding sentence, the rights and obligations of the parties hereto may not be
assigned or transferred by either party without the prior written consent of
the other party.
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6.5 Notices. For purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to Employee: _____________________________
00000 Xxxxxx Xxxx
Xxxxxxxxxx Xxxxx Xx.
92649
OR __________
If to Employer:
Topro, Inc.
Attn: Xxxx Xxxxxxx, President
0000 Xxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
6.6 Severability. If any provision of this Agreement is
prohibited by or is unlawful or unenforceable under any applicable law of any
jurisdiction as to such jurisdiction, such provision shall be ineffective to
the extent of such prohibition without invalidating the remaining provisions
hereof.
6.7 Section Headings. The section headings used in this Agreement
are for convenience only and shall not affect the construction of any terms of
this Agreement.
6.8 Survival of Obligations. Termination of this Agreement for
any reason shall not relieve Employer or Employee of any obligation accruing or
arising prior to such termination.
6.9 Amendments. This Agreement may be amended only by a written
agreement executed on behalf of both Employer and Employee.
6.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original but all of which, when
taken together, shall constitute only one legal instrument. This Agreement
shall become effective when copies hereof, when taken together, shall bear the
signatures of both parties hereto. It shall not be necessary in making proof
of this Agreement to produce or account for more than one such counterpart.
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Exibit 10.22
6.11 Fees and Costs. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys fees, costs and necessary
disbursements in addition to any other relief to which that party may be
entitled.
"EMPLOYER"
TOPRO, INC.
By__________________________________
Xxxx Xxxxxxx, President
"EMPLOYEE"
_____________________________________
Xxxxxxxx Xxxxxx
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Exhibit 10.22
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT is made as of the 18th day of
September, 1996, and is intended to modify the Employment Agreement
("Agreement") dated as of the 22nd day of May 1996 by and between Topro, Inc.,
a Colorado corporation (the "Employer" or "Company") and Xxxxxxxx Xxxxxx
("Employee").
WHEREAS, in addition to the cash compensation provided for in the
Agreement, the Company desires to provide an incentive for the Employee to put
forth maximum efforts for the success of the combined operations of the Company
and VI, and Employee is willing to be so compensated; and
WHEREAS, to provide such incentive, the Company's Board of Directors has
authorized the grant to Employee of certain stock purchase options, and the
parties desire to amend the referenced employment agreement to reflect the
issuance of those options to Employee;
NOW, THEREFORE, in consideration of the mutual premises herein contained,
the parties agree as follows:
1. Article III of the Agreement is amended by the addition of a new Paragraph
3.5, as follows:
3.5 Grant of Stock Option. The Company's Board of Directors shall
grant to Employee an option to purchase 150,000 shares of the Company's
Common Stock, exercisable at a price of $2.25 per share. The option shall be
exercisable for a term of 10 years following the date of grant.
2. Except for the change effected by the addition of new Paragraph 3.5, the
terms of the Agreement are not intended to be modified and shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first written above.
"EMPLOYER"
TOPRO, INC.
By
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Xxxx Xxxxxxx, President
"EMPLOYEE"
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Xxxxxxxx Xxxxxx
