EXECUTIVE EMPLOYMENT AGREEMENT Executive Name: Paul C. Campbell Title(s): Chief Financial Officer, Senior Vice President and Treasurer Effective Date: May 8, 2009
Executive
Name: Xxxx X. Xxxxxxxx
Title(s): Chief
Financial Officer, Senior Vice President and Treasurer
Effective
Date: May 8,
2009
For good
consideration, the Company employs Xxxx X. Xxxxxxxx on the following terms and
conditions (the “Agreement”) as of the above date between EMAGIN CORPORATION, a
Delaware corporation (the “Company”), and the above named executive
(“Executive”).
1.
EMPLOYMENT AGREEMENT
1.1.
Employment, Duties, and Responsibilities. The Company hereby employs Executive
as its Chief Financial Officer, Senior Vice President and Treasurer and
Executive accepts such employment on the terms contained in this Agreement.
Within limitations established by the Bylaws of the Company, Executive shall
have each and all of the duties, responsibilities and authorities that are
consistent with his title. The Company shall retain full direction and control
of the manner, means and methods by which Executive performs the services for
which he is employed hereunder and of the place or places at which such services
shall be rendered. Executive shall report to the Board of Directors of the
Company. Executive shall report to the Company’s Chief Executive
Officer and shall have additional reporting to the Company’s Board of Directors,
or the executive may also be assigned for period of time to a management
committee as directed in writing by the Board of Directors.
1.2.
Term. This Agreement shall commence on May 8, 2009 and shall continue
hereafter, unless terminated pursuant to this Section 3, for a period of thirty
six (36) months from the date hereof.
1.3. Time
and Effort. Executive shall use his best efforts to carry out the
duties and responsibilities that are consistent with his title and devote the
substantial portion of his entire business time, attention, and energy
exclusively to the business and affairs of the Company. During Executive’s
employment Executive shall not engage in any business activities outside those
of the Company to the extent that such activities would interfere with or
prejudice Executive’s obligations to the Company. Executive may serve as a
member of the Board of Directors of other organizations that do not compete with
the Company, and may participate in other professional, civic, governmental
organizations and activities that do not materially affect his ability to carry
out his duties.
1.4.
Service to the Board of Directors. The executive will provide
information and services to the Company’s Chief Executive Officer, the Board of
Directors and its Committees as needed to support company business.
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2.
COMPENSATION
2.1. Base
Salary. As compensation for performing services for the Company, Executive shall
be entitled to an annual salary of $282,000, subject to the deduction of
applicable taxes, payable in bi-weekly installments consistent with the
Company’s payroll practices. The annual base salary will be reviewed on or
before January 1 of each year by the Compensation Committee to determine if such
base salary should be increased due to inflation or in recognition of
Executive’s services to the Company.
2.2.
Bonus. The Board or Compensation Committee of the Board may provide executive
with a bonus from time to time at their discretion.
2.3. Time
Off. Executive shall accrue personal time off for sick leave,
personal reasons, and holidays according to applicable company policy, except
that Executive shall accrue personal time off for vacation in accordance with
the Executive’s accrual rate of 30 days per each calendar year, with a maximum
of 45 days of unused vacation rolled over to the subsequent year in addition to
each calendar’s year accrual. The limits for accrual and rollover of personal
time, other than vacation policy specified herein, shall be pursuant to Company
policy, as may be modified company-wide from time to time.
2.4.
Benefit Plans. During Executive’s employment, Executive shall be
entitled to participate, to the extent of Executive’s eligibility, in the
employee fringe benefits made available by the Company to its employees. Nothing
in this Agreement shall preclude the Company from terminating or amending any
employee benefit plan or program as a whole from time to time.
2.5.
Business Expenses. Upon submission of itemized expense statements in the manner
specified by the Company, Executive shall be entitled to reimbursement for
reasonable travel, relocation, and other reasonable business expenses incurred
by the Executive in the performance of his duties under this Agreement, or as
agreed to by the Board of Directors.
2.6.
Stock Options and Grants. Executive and the Company shall enter into an
agreement whereby, among other things, Executive shall be entitled to receive
340,000 qualified stock options (the “Options”), which shall entitle Executive
to purchase 340,000 shares of common stock of the Company priced at
the closing price of the stock on the date of grant. The Options shall vest as
follows: 1/3 shall vest on the date of this Agreement, 1/3 shall vest on 1st
annual anniversary of this Agreement, and 1/3 shall vest on the 2nd annual
anniversary of this Agreement. Executive shall be eligible to participate in the
Company’s Stock Option and Stock Purchase Plans, as determined in the sole
discretion of the Board of Directors. The Board or Compensation Committee of the
Board may provide additional awards of stock options or stock grants from time
to time or on an incentive plan as deemed appropriate.
2.7
Payments to Xxxxx LLC. Executive acknowledges that in connection with
the Employee’s employment by the Company the Company is obligated to make
certain payments to Xxxxx LLC, including the payment of $1,000 per month and the
issuance of options to purchase 60,000 shares of the Company’s
stock. Executive hereby agrees that he has no claims to such
payments.
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3.
TERMINATION OF EMPLOYMENT
3.1.
Voluntary. If Executive voluntarily terminates Executive’s employment with the
Company, other than for Good Reason as defined in Section 3.4 herein, Executive
shall cease to accrue salary, personal time off, benefits and other compensation
on the date of voluntary termination. Accrued benefits, if any, will be payable
in accordance with applicable benefit plan provisions.
3.2. With
Cause. Notwithstanding anything herein to the contrary, the Company may
terminate Executive’s employment hereunder for cause for any one of the
following reasons: (a) failure to devote substantially all of Executive’s full
professional time, attention, energies, and abilities to Executive’s employment
duties for the Company, which failure is not cured within two weeks after the
Company gives Executive written notice of the failure; (b) inducement of any
customer, consultant, employee, or supplier of the Company to unreasonably
breach any contract with the Company or cease its business relationship with the
Company; (c) willful, deliberate, and persistent failure by Executive to
reasonably perform the duties and obligations of Executive’s employment which
are not remedied in a 90 day period of time after receipt of written notice from
the Company; (d) an act or acts of dishonesty undertaken by Executive resulting
in substantial personal gain by the Executive at the expense of the Company; (e)
material breach of a fiduciary or contractual duty to the Company; (f)
conviction of a felony, or (g) commission of an act that results in material
long term harm to the goodwill or reputation of the Company. To be deemed
terminated for Cause, the Company shall have given Employee written notice
stating the alleged Cause and shall have provided Employee an opportunity to
present evidence to the Board of Directors, at the Company’s offices on a date
and time mutually convenient to the Board, no sooner than one and not later than
two weeks after the foregoing notice, to refute the claim of Cause. Executive
shall cease to accrue salary, personal time off, benefits and other compensation
on the date of “with cause” termination by the Company. Accrued benefits, if
any, will be payable in accordance with applicable benefit plan provisions of
the Company.
3.3.
Without Cause. The Company may terminate the employment of Executive at any time
without notice and without cause (as defined in Section
3.2). In such event, Executive shall, at the Company’s sole
discretion, be entitled to either (i) monthly salary payments for twelve (12)
months, based on Executive’s monthly rate of base salary at the date of such
termination, or (ii) a lump-sum payment of Executives salary for such 12 month
period, based on Executive’s monthly rate of base salary at the date of such
termination. Executive shall also be entitled to receive (i) payment for accrued
and unpaid vacation pay and (ii) all bonuses that have accrued during the term
of the Agreement, but not been paid. Any non-vested Options pursuant to Section
2.6 of this Agreement shall vest immediately. Furthermore, shares of any of the
Executive’s stock subject to any lockups will be, provided such release does not
violate any contract that the Company is a party to, immediately released from
such restrictions by the company within 30 days of termination without cause.
Executive will otherwise cease to accrue salary and other benefits upon the date
of such final payment, other than the Company’s normal insurance policies for
terminated employees.
The
executive will be able to retain all electronic equipment, media, and supplies
provided by the company for use primarily by the employee off site, on loan for
up to one year from the termination date, after which the executive will return
the equipment. Copies of data files relevant to the company will be downloaded
on additional over 100GB capacity bulk storage media provided by the company.
All company proprietary files will be deleted from such equipment.
3.4.
Effect of Termination without “Cause” on Employee Stock Options. The
Company hereby irrevocably offers to amend any stock options granted to
Executive to permit the full exercise thereof following termination of
Executive’s employment without Cause (as defined in Section 3.3) or because of
death or disability. The Company hereby also irrevocably offers to amend any
stock options granted to Executive to permit the immediate full vesting and
exercise thereof (provided such amendment does not violate any contract that the
Company is a party to) at any time after termination of Executive’s employment
without Cause or because of death or Disability to the same extent as if
Executive’s employment had not terminated. Executive or Executive’s personal
representative may accept either or both of such offers at any time before such
options otherwise expire by giving written notice to the Company. To the extent
that any options held by Executive are not incentive stock options within the
meaning of Section 422 of the Internal Revenue Code, Executive hereby accepts
both such offers.
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3.5.
Termination for Good Reason. If Executive terminates his employment
with the Company for Good Reason (as hereinafter defined), such termination will
be considered to be effectively the same as termination without cause; he shall
be entitled to the severance benefits set forth in Section 3.3 and vesting
benefits set forth in Section 3.4. For purposes of this Agreement, “Good Reason”
shall mean any of the following unless such change was initiated by or
voluntarily agreed to by Executive: (a) any significant change in the
Executive’s title, or position, or duties and responsibilities not voluntarily
made; (b) any involuntary decrease in base salary (other than any which may be
assessed on a percentage basis to the company as a whole); or (c) any material
breach by the Company of this Agreement.
3.6.
Change of Control. If the Executive’s employment is terminated or his position
significantly changed or salary decreased as a result of the acquisition of the
Company by merger, sale of all or substantially all of the Company’s assets, or
other reorganization resulting in a change of 50% or more in the ownership of
the Company’s stock (other than a change of 50% or more in the ownership of the
Company’s stock resulting from the issuance of equity securities by the Company
the primary purpose of which is to raise capital and which results in the pro
rata dilution of the equity interests of all holders of common stock immediately
prior to such issuance), Executive shall be entitled to the severance benefits
set forth in Section 3.3 and vesting benefits set forth in Section 3.4. Neither
this Agreement nor its incorporated terms may be invalidated or deleted or
altered as part of the terms of any Change of Control actions. The Company’s
rights and obligations under this Agreement will inure to the benefit and be
binding upon the Company’s successors and assignees.
3.7.
Disability. The Company may terminate this Agreement without liability if
Executive shall be permanently prevented from properly performing his essential
duties with reasonable accommodation by reason of illness or other physical or
mental incapacity for a period of more than 60 consecutive days. Upon such
termination, Executive shall be entitled to all accrued but unpaid Base Salary,
accrued bonus (if any), and accrued but unused paid time off. In the event
Executive’s employment terminates under this Section, Executive may pursue long
term disability benefits, if eligible, under any plan which the Company has
provided for Executive.
3.8.
Death. In the event of the death of Executive, the Company’s
obligations hereunder shall automatically cease and terminate; provided,
however, that within 15 days the Company shall pay to Executive’s heirs or
personal representatives Executive’s Base Salary and accrued but unused vacation
pay to the date of death. All other amounts due Executive, including
bonuses, shall be paid to Executive’s estate in accordance with the full term of
this Agreement.
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4.
Non Competition, Non Solicitation, Bankruptcy
4.1. Non
Competition. The Executive hereby covenants and agrees that during the term of
this Agreement and for a period of one year following the end of the employment
term, the Executive will not, without the prior written consent of the Company,
indirectly or directly, on his own behalf or in the service or on behalf of
others, whether or not for compensation, engage in any business activity, or
have any interest in any person, firm, corporation or business, through a
subsidiary or parent entity or other entity (whether as a shareholder, agent,
joint venturer, security holder, trustee, partner, consultant, creditor lending
credit or money for the purpose of establishing or operating any such business,
partner or otherwise) with any Competing Business of the Company in the Covered
Area. For purposes of the Section this Section “Competing Business” means any
company engaging in the design, development, manufacturing, and marketing of
virtual imaging products which utilize OLEDs, or organic light emitting diodes,
OLED on silicon micro displays and related information technology solutions. For
purposes of this Section “Covered Area” means all geographical areas
of the United States and other Foreign jurisdictions where the Company has
offices, manufactures or may contemplate offices or manufacturing of related
products and/or sells its products directly or in-directly through distributors
and/or other sales agents.
4.2. Non
Solicitation. The Executive further agrees that the Executive will
not divert any business of the Company and/or its affiliates or any customers or
suppliers of the Company and/or the Company’s and/or its affiliates’ business to
any other person, entity or competitor, or induce or attempt to induce, directly
or indirectly, any person to leave his or her employment with the
Company.
4.3.
Bankruptcy. In the event that the Company voluntarily or involuntary
files for bankruptcy under the Bankruptcy Code, the Executive shall use his best
efforts in keeping the Company solvent and in assisting the Company emerge from
bankruptcy as a reorganized entity, unless the Company is
liquidated.
4.4.
Remedies. The Executive acknowledges and agrees that his obligations
provided herein are necessary and reasonable in order to protect the Company and
its affiliates and their respective business and the Executive expressly agrees
that monetary damages would be inadequate to compensate the Company and/or its
affiliates for any breach by the Executive of his covenants and agreements set
forth herein. Accordingly, the Executive agrees and acknowledges that any such
violation or threatened violation of this Section 4 will cause irreparable
injury to the Company and that in addition to any other remedies that may be
available, in law, in equity or otherwise, the Company and its affiliates shall
be entitled to obtain injunctive relief against the threatened breach of this
Section 4 or the continuation of any such breach by the Executive without the
necessity of proving actual damages.
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5.
General Provisions
5.1.
Modification: No Waiver. No modification, amendment or discharge of this
Agreement shall be valid unless the same is in writing and signed by all parties
hereto. Failure of any party at any time to enforce any provisions of this
Agreement or any rights or to exercise any elections hall in no way be
considered to be a waiver of such provisions, rights or elections and shall in
no way affect the validity of this Agreement. The exercise by any party of any
of its rights or any of their elections under this Agreement shall not preclude
or prejudice such party from exercising the same or any other right it may have
under this Agreement irrespective of any previous action taken.
5.2.
Notices. All notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing and shall be
deemed to have been given when hand delivered or mailed by registered or
certified mail as follows (provided that notice of change of address shall be
deemed given only when received):
If to the
Company, to:
eMagin
Corporation
00000
X.X. 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxx,
XX 00000
Attention:
Chief Executive Officer
With a
copy to:
Xxxxxxx
Xxxxxxxx, Esq.
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
If to
Executive, to:
Xxxx X.
Xxxxxxxx
0000
000xx Xxxxx
X.X.
Xxxxxxx,
Xxxxxxxxxx 00000
Or to
such other names or addresses as the Company or Executive, as the case may be,
shall designate by notice to each other person entitled to receive notices in
the manner specified in this Section.
5.3.
Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
5.4.
Further Assurances. Each party to this Agreement shall execute all instruments
and documents and take all actions as may be reasonably required to effectuate
this Agreement.
5.5.
Severability. Should any one or more of the provisions of this Agreement or of
any agreement entered into pursuant to this Agreement be determined to be
illegal or unenforceable, then such illegal or unenforceable provision shall be
modified by the proper court or arbitrator to the extent necessary and possible
to make such provision enforceable, and such modified provision and all other
provisions of this Agreement and of each other agreement entered into pursuant
to this Agreement shall be given effect separately from the provisions or
portion thereof determined to be illegal or unenforceable and shall not be
affected thereby.
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5.6.
Successors and Assigns. Executive may not assign this Agreement without the
prior written consent of the Company. The Company may assign its rights without
the written consent of the executive, so long as the Company or its assignee
complies with the other material terms of this Agreement. The rights and
obligations of the Company under this Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of the Company, and the
Executive's rights under this Agreement shall inure to the benefit of and be
binding upon his heirs and executors. The Company's subsidiaries and controlled
affiliates shall be express third party beneficiaries of this
Agreement.
5.7.
Entire Agreement. This Agreement supersedes all prior agreements and
understandings between the parties, oral or written. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced.
5.8.
Counterparts; Facsimile. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original,
and all of which taken together shall constitute one and the same instrument.
This Agreement may be executed by facsimile with original signatures to
follow.
5.9 No
Conflicts. The Executive represents and warrants to the Company that
the execution of this Agreement by him and his employment by the Company
pursuant to this Agreement does not and will not conflict with or violate any
agreement to which the Executive is a party to.
IN
WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed
this Agreement as of the date first written above.
[signature page follows]
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eMagin
Corporation
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By:
/s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx
X. Xxxxxxx, Xx.
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Chief
Executive Officer
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Date:
May 8, 2009
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/s/
Xxxx X. Xxxxxxxx
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Xxxx
X. Xxxxxxxx
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