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EXHIBIT 10.18
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "Agreement") is entered into
by and between XXXXX MICROCOMPUTER PRODUCTS, INC. (the "Company") and XXXXX X.
XXXXX (the "Executive") on this 31st day of October, 1997.
For and in consideration of the employment or continued employment, as
the case may be, of the Executive by the Company, the mutual covenants and
promises contained herein, and in the Terms and Conditions of Employment
attached hereto as Exhibit "A," and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Executive hereby covenant and agree as follows:
1. Employment; Compensation. Company hereby employs or continues
to employ Executive as Treasurer/Chief Financial Officer on the terms and
conditions set forth herein and Executive accepts such employment. Executive's
initial salary shall be $181,000.00 per year, and, subject to paragraph 3 below,
shall continue for so long as Executive is employed by the Company, or until
such salary is modified by mutual consent of the parties hereto. In addition,
Executive shall be entitled to an executive incentive bonus of up to $54,300.00
based upon performance criteria to be determined by the Company.
2. Term. The Term of this Agreement shall be two (2) years from
the date hereof, unless sooner terminated in accordance with paragraph 3 below.
3. Termination and Severance. This Agreement may be terminated by
Company, its Chairman of the Board, or Executive with or without Cause. In the
event Company or the Chairman of the Board terminates this Agreement without
Cause during the Term and prior to the first anniversary of the date hereof,
then Executive shall be entitled to severance pay in the form of continuation of
his salary until the later of (i) the expiration of the remainder of the
two-year Term, or (ii) six (6) months following the effective date of such
termination without Cause if such termination occurs during the Term. In the
event that Company or the Chairman of the Board terminates Executive's
employment for Cause, or Executive voluntarily terminates employment, or the
Term expires, the Company shall not be obligated to pay any salary or severance
or other Compensation to Executive after the effective date of termination.
During the Term, Executive shall be entitled to receive bonuses in accordance
with the Company's normal policies with respect to similarly situated
Executives, if any. Executive agrees to provide Company with at least six (6)
weeks advance written notice prior to voluntary termination or resignation by
Executive.
4. Terms and Conditions. Executive acknowledges that this
Agreement, and his employment obligations hereunder, expressly include the
provisions set forth in the Terms and Conditions of Employment attached hereto
as Exhibit "A" and the duties described in Exhibit "B," which are incorporated
herein by this reference thereto. This Agreement shall supersede any prior
employment agreement, and any restrictive covenants, previously entered into by
Executive with the Company.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals
on the date and year first above written.
COMPANY:
/s/ Xxxxx X. Xxxxx (SEAL) By:/s/ Xxxxxx X. Xxxxx (SEAL)
--------------------------------- ------------------------------------
Executive
Attest:/s/ Xxx Xxxxxxxxx
--------------------------------
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EXHIBIT "A"
TERMS AND CONDITIONS OF EMPLOYMENT
1. Duties and Responsibilities. Executive shall devote his full
time and best efforts to the duties and responsibilities assigned by the Company
and shall abide by this Agreement and the Company's Operations Policies.
Executive's specific job description and responsibilities include, but are not
limited to, those listed on Exhibit "B."
2. Confidential Information, Trade Secrets. Executive shall not
use or disclose to any person or entity any Confidential Information or trade
secrets of Company other than as necessary in the fulfillment of this Agreement
in the course of employment. This paragraph shall be effective during the term
hereof and for a period of two (2) years after termination of employment,
whether with or without Cause.
3. Inventions. The Company and Executive acknowledge that in the
course of Executive's employment by the Company, Executive may from time to time
develop or participate in the development of software or technology. All works
or inventions conceived, originated, authored, or discovered, in whole or in
part, by Executive, which result from any work performed for the Company or
related to or useful in the business of the Company are and shall be the
exclusive property of the Company. Executive shall cooperate with the Company in
the protection of the Company's copyrights, patents, and other proprietary
rights therein and, to the extent deemed desirable by the Company, in the
registration of the same. Executive hereby assigns to the Company all of
Executive's right, title and interest in and to any and all inventions,
processes, systems and creations, whether or not patentable or copyrightable,
that Executive may conceive, develop, or create, in whole or in part, during his
employment with the Company, whether or not during normal working hours.
Executive shall sign and deliver all documents relative to said inventions
requested by the Company for the purpose of confirming the Company's title
thereto.
4. Company Property. Upon request of the Company, and without
request promptly on termination of this Agreement or Executive's employment
hereunder, Executive shall deliver all Company Property in Executive's
possession or control to the Company. Executive acknowledges and agrees that
title to all Company Property is vested in the Company, and Executive shall not
retain any such property or any copies thereof in any form, including magnetic
or electronic form.
5. Protective Covenants. Executive is and will during the course
of employment become intimately familiar with Confidential Information, trade
secrets, facilities and services, and other property of the Company, and the
protection of the Company requires that all such property and information must
remain the sole and private property of the Company to be used only for the
Company's benefit, not to be disclosed to any other party or used by Executive
against Company. Accordingly, Executive does hereby warrant, represent, covenant
and agree, as follows:
(i) Covenant Not to Compete. Executive agrees that, for a
period of two (2) years from the termination of his employment
with Company, whether with or
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without Cause, he shall not, directly or indirectly, on behalf
of himself or any other person or entity, compete with the
Company within a fifty (50) mile radius of the Company's
principal place of business in Norcross, Georgia, or its
principal place of business in Thousand Oaks, California, by
engaging in the manufacture, assembling, or selling of
computer component products, software, or systems, including
modems, competitive with those manufactured, assembled, or
sold by the Company, in a capacity which requires Executive to
perform services substantially identical to the services
performed by Executive on behalf of Company.
(ii) Covenant Not to Solicit Customers. During the term of
Executive's employment hereunder, and for a period of two (2)
years following the termination of such employment for any
reason whatsoever, Executive shall not (except on behalf of or
with the prior written consent of Company), either directly or
indirectly, on Executive's own behalf or on behalf of others,
solicit, divert, or appropriate any business for the
manufacture, assembling, or sale of computer competent
products, software or systems, including modems, competitive
with those manufactured, assembled or sold by the Company,
from any customer or actively sought prospective customer of
the Company to whom the Company offered or provided products
or services, and with whom Executive had material contact at
any time during the twenty-four (24) months preceding the
termination of Executive's employment.
(iii) Covenant Not to Solicit Employees. During the term of
Executive's employment hereunder, and for a period of two (2)
years following the termination of such employment for any
reason whatsoever, Executive shall not employ or solicit the
employment of any employee of the Company who was an employee
of the Company at any time during the six (6) months preceding
the termination of Executive's employment with the Company,
for the purpose of causing such employee to take employment
with Executive or a competitor of the Company.
Executive agrees and acknowledges that the restrictions in
this Agreement are not vague, over broad or indefinite, and are reasonable and
designed to protect the legitimate business interests of the Company. In
addition to any other remedies which Company may have under the law for breach
of any or all of said covenants, Company shall be entitled to injunctive and/or
other equitable relief against Executive for any violation of any of said
Covenants.
6. Survival. Paragraphs 2, 3, 4, 5, and 6 hereof, together with
any provisions of the Company's Operations Policies expressly or by necessary
implication applicable after the termination of employment, shall survive
termination of this Agreement. Upon termination, Executive shall repay to
Company immediately any advances by Company, not offset by earnings or other
credits due him or her, even if not expressly made repayable at the time of such
advance, it being the intent of the parties that all such advances shall be
repayable as provided by this paragraph. Company may offset any sums owed to
Company by Executive against any amounts otherwise owed by Company to Executive.
No sums otherwise due Executive at termination shall be payable to Executive if,
at the time of termination or thereafter, Executive shall be in violation
of any term or provision of this Agreement.
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7. Entire Agreement. This Agreement contains the entire
understanding and agreement between the parties, and all promises,
representations, warranties or inducements made by either party to the other,
including any prior employment agreement or restrictive covenants, not
specifically made in writing or made a part hereof by reference, are expressly
superseded and shall have no force or effect. This Agreement may not be modified
except in a writing signed by both parties hereto.
8. Severability. If any provision of this Agreement (including
any subparts of any paragraph) is invalid or unenforceable by any rule of law or
public policy, this Agreement shall be construed so as to delete herefrom the
invalid or unenforceable covenant or provision. To the extent that any provision
is invalid or unenforceable that may be valid or enforceable by limitation
thereof, then such provision shall be enforceable to the fullest extent
permitted under the law of the jurisdiction in which enforcement is sought. If
any particular provision is held to be invalid, illegal or unenforceable, all
other covenants, terms, conditions and provisions hereof shall be and remain in
full force and effect.
9. Binding Effect. This Agreement shall be binding upon, and
shall inure to the benefit of, each respective party's heirs, successors, legal
representatives, executors and assigns. This Agreement shall be construed and
governed in accordance with the laws of the State of Georgia.
10. Definitions. Any word used in this Agreement which is defined
in this paragraph shall have the meaning set forth below:
(a) "Agreement." The Executive Employment Agreement,
together with the Terms and Conditions of Employment and any documents
incorporated therein by reference. In the event of any inconsistency between the
Agreement and any Operations Policies, the Agreement shall control.
(b) Cause. The term "Cause" as used in the within and
foregoing Agreement shall mean (i) Executive's breach of a covenant or
obligation of this Agreement, including any of the Terms and Conditions of
Employment, or any failure or refusal by Executive to perform Executives duties
hereunder to the satisfaction of the Company or its Board of Directors, or to
comply with any lawful directive of the Board of Directors, if, after receiving
written notice of such breach, failure or refusal to perform, Executive does not
cure or correct such breach, failure or refusal within five (5) business days
after Executive's receipt of such notice; and (ii) any act of Executive in the
course of Executive~s employment that constitutes larceny, fraud, deceit, gross
negligence, a crime involving moral turpitude, wilful misrepresentation, wilful
misconduct, or failure to maintain the confidentiality of the Confidential
Information and trade secrets of Company; and (iii) any other act recognized by
applicable law to constitute cause for termination.
(c) "Company." Xxxxx Microcomputer Products, Inc., and
any successor or assignee hereof.
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(d) "Company Property." All property, without limitation,
whether real, personal, tangible or intangible, including all inventions,
confidential information, trade secrets, facilities, trade names, logos, patents
and all tangible materials and supplies (whether originals or duplicates and
including, but not in any way limited to, sample products, video tape cassettes,
film, catalogues, price lists, rate sheets, outstanding quotations, books,
records, manuals, sales presentation literature, training materials, calling or
business cards, customer record cards, customer files, customer names, addresses
and telephone numbers, supplier information, contacts, pricing and practices,
strategic partner information, files and records, current or prospective
business plans, Operations Policies, directives, correspondence, documents,
contracts, orders, messages, memoranda, notes, circulars, agreements, bulletins,
invoices and receipts, and sources of financing), which in any way pertain to
Company's business, whether or not furnished to Executive by Company and whether
or not prepared, compiled, or acquired by Executive while employed by Company,
are the sole property of Company.
(e) "Compensation." Any and all payments, remuneration
and benefits, including employment, provided to Executive by the Company,
regardless of the form thereof. Such compensation as is paid to Executive shall
be conclusively deemed legally sufficient consideration for this Agreement.
(f) "Confidential Information." All confidential
information regarding the Company's business, including but not limited to its
methods of operation, products, software programs, equipment and techniques,
existing and contemplated facilities and services, inventions, systems, devices
(whether or not patentable), financial information and practices, plans,
pricing, selling techniques, names, addresses and phone numbers of the Company's
Customers and prospective Customers and suppliers and prospective suppliers,
credit information and financial data of the Company and the Company's Customers
and prospective customers and suppliers and prospective suppliers, particular
business requirements of the Company's Customers, and special methods and
processes involved in designing, producing and selling Company's facilities and
services, current and prospective business plans, strategic partner information,
files and records, and the terms of this Agreement, all shall be deemed
Confidential Information and the Company's exclusive property. The parties agree
that Confidential Information shall be deemed to be trade secrets under the
Georgia Trade Secrets Act. Confidential Information shall not include
information that is in the public domain or otherwise readily accessible to
members of the public.
(g) "Customer." Each person, corporation, firm,
partnership or other entity whatsoever, which has purchased or shall purchase
the Company's products, facilities or services.
(h) "Executive." The person signing this Agreement as
Executive, regardless of any title or duties which may now or hereafter be
assigned to such person by the Company. This Agreement shall govern the
employment relationship in any and all such situations.
(i) "Inventions." Any and all devices, systems, software
and other programs, processes, products, patents and any other creation (all of
the foregoing, for purposes of this paragraph, called "inventions") identical or
similar to or relating to devices, processes, systems, products or services
utilized and/or offered by the Company.
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(j) "Operations Policies." All written procedures,
policies, instructions from Company's officers, directors or managers, the
Company Employee Manual (if any), and all other written communications from the
Company to Executive individually, or to all Company's employees. Said
Operations Policies are hereby incorporated herein and expressly made a part of
this Agreement by this reference thereto.
(k) "Termination." Cessation of this Agreement or the
underlying employment relationship, whether by action of the Executive or
Company, and whether voluntary or involuntary. Termination hereby may be with or
without Cause.
(l) "Terms and Conditions of Employment." This document
entitled Terms and Conditions of Employment, which is Exhibit "A" to the
Executive Employment Agreement, and all of the provisions hereof.
PLEASE INITIAL:/s/ Xxxxx X. Xxxxx
-----------------------------------
Executive
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EXHIBIT "B"
JOB DESCRIPTION
TITLE: Vice President - Finance and Administration
REPORTS TO: Chief Executive Officer
SUMMARY:
Plans, directs and controls the organization's overall financial
plans and policies along with its accounting practices and the
conduct of its relationship with lending institutions, shareholders
and the financial community. Directs treasury, budgeting, audit, tax,
accounting, human resources, data processing, real estate, insurance
activities and certain administrative functions for the company and
its subsidiaries.
DUTIES AND RESPONSIBILITIES:
1. Directs the Controller in providing and directing procedures and
systems necessary to maintain proper records and to afford adequate accounting
controls and services.
2. Directs the Treasury function in activities as custodian of the funds,
securities and assets of the organization.
3. Directs the tax department in activities including compliance with tax
filing requirements, tax planning and financial statement tax provisions.
4. Appraises the organization's financial position and issues periodic
financial and operating reports. Directs and coordinates the establishment of
organization budget programs.
5. Directs and analyzes studies of general economic, business and
financial conditions and their impact on the organization's policies and
operations.
6. Directs the activities of the Human Resources department ensuring that
the company's organizational structure and people resources meet the current
needs of the company as well as anticipating future needs. Establishes policies
in the areas of staffing, compensation and benefits.
7. Directs the Information Technology function ensuring that the company
has an enterprise resource planning system that provides the company a
competitive edge and supports the company's growth plan.
8. Directs and coordinates the activities of the Corporate Services
function, including long range facilities planning.
9. Performs other duties as directed by the Chief Executive Officer.
