EXHIBIT 10.11
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the
13th day of June, 1996, by and between Alyn Corporation ("Employer"), and Xx. X.
X. Xxxxxxx ("Employee").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties agree as follows:
1. Employment: Employer hereby employs Employee, and Employee hereby
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accepts employment with Employer, on the terms and conditions set forth herein.
2. Duties:
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(a) So long as he shall be elected to such offices, Employee shall
occupy the position of and perform all the acts and duties of Director
(Manufacturing Division) of Employer. Employer's Board of Directors may extend
Employee's duties and titles from time to time; provided, however, that during
the term of this Agreement, Employee's responsibilities shall be commensurate
with his current responsibilities as Director (Manufacturing Division) of
Employer.
(b) Employee shall be required to devote his time, ability and
attention to the business of Employer.
3. Term: Subject to the provisions for termination as herein provided,
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the term of employment of Employee shall be twenty-four (24) months, beginning
24 June, 1996, and ending 24 June, 1998. Thereafter, this Agreement shall
automatically be renewed for a renewal term of one (1) year after the expiration
of the initial term, and for successive one-year renewal terms thereafter,
unless either party gives the other written notice ("Notice") to terminate the
Agreement at the expiration of the initial term or of the first one-year renewal
term or of any such successive one-year renewal term. In view of the
significant confidential information, including proprietary trade secrets, that
will be provided to Employee by Employer, the Notice must be given by the
Employee at least three (3) months prior to the expiration of any such Term;
Employer may give Notice to Employee at least three (3) months prior to the
expiration of any such Term; provided, however, Employer may shorten such Notice
period in the event Employer is terminating Employee's employment for Cause (in
accordance with section 14 hereof), and Employee may shorten such Notice period
in the event Employee is terminating Employee's employment hereunder for
Employer's Breach (in accordance with section 14(c) hereof). The Initial Term
and any one-year renewal term or subsequent successive renewal term shall be
collectively referred to as the "Term of Employment".
4. Compensation:
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(a) Base Salary. The compensation to be paid Employee by Employer
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for all services rendered to Employer during the term of this Agreement, or to a
parent or subsidiary of Employer, shall be determined by the Management of
Employer, but in no event shall such annual salary be less than Eighty Five
thousand dollars ($85,000.00) ("Base Salary"), payable in
forty-eight (48) equal semi-monthly installments in arrears, on the 1st and 15th
day of the month, after the effective date hereof. The Base Salary shall be
reduced by income tax and other applicable withholdings, and may be payable by
Employer, or by a parent or subsidiary of Employer, at the Employer's
discretion.
(b) Bonus. In addition to his Base Salary, the Employee shall pay a
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minimum annual bonus of $10,000 for good performance, with the possibility of a
greater bonus, in accordance with the Employer's bonus plan, and if company
performance is good.
5. Vacation: Employee shall be entitled each year to a vacation of three
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(3) weeks, during which time his compensation shall be paid in full. For
vacation purposes, a year shall be deemed to run from June 24 to June 24.
Employee's entitlement to such paid vacation shall accrue at the rate of 1.25
days per month.
6. Working Facilities: Employee shall be furnished with facilities,
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amenities and services as are presently or may be hereinafter furnished to
senior management officers of Employee and as are adequate for the performance
of their duties.
7. Other Benefits:
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(a) Employee shall be entitled to participate on a basis consistent
with other executive employees of Employer in stock option, deferred
compensation, savings, hospitalization, medical, disability, and life insurance
programs in accordance with such plans as Employer or its corporate parent may
now have in effect or may adopt from time to time, commensurate with the
Employee position.
(b) Employee shall also receive such other additional compensation
(such as ten (10) days of sick leave and ten (10) paid holidays per year),
rights and other benefits as the Management of Employer shall from time to time,
in its absolute and sole discretion, grant to him.
8. Expenses: Employee is authorized to incur on behalf of Employer
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reasonable expenses in connection with the performance of his duties hereunder
or in promoting or furthering the business of Employer, including dues for
reasonable expenses for entertainment, travel, lodging and similar items, in
accordance with the standards and policies that the Management of Employer may
establish from time to time. Any such charges may be paid for directly by
Employee, who shall be reimbursed by Employer upon the submission to Employer's
Treasurer of an itemized account of such expenditures.
9. Confidentiality: Except as required in the ordinary course of
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Employer's Business (which currently is the design, development, manufacture and
marketing of advanced materials and industrial and consumer products for a
variety of selected markets, including, but not limited to, products and uses
based on the Employer's proprietary patented technology for the application of
boron carbide in lightweight mental matrix composites under the name Boralyn(R)
and silicon nitride blanks and finished shapes sold under the Ceralyn(TM)
name), Employee shall hold in confidence and not disclose to any person or
entity without the express prior written authorization of Employer, either
during the term of this Agreement or any time thereafter, the
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names or addresses of any of Employer's customers; Employer's past or
prospective dealings with its customers; the parties, dates, or terms if any of
Employer's contracts; any information, trade secrets, systems, processes or
business methods, or any other secret or confidential matter relating to the
customers or the business affairs of Employer or any companies affiliated with
Employer. Employee acknowledges that in the course of performing his duties he
may have access to confidential information, the ownership and confidential
status of which are highly important to Employer and he agrees to comply with
all known policies and procedures of Employer for the protection of said
confidential information. The term "confidential information" as used in this
Agreement means (1) proprietary information of Employer including, but not
limited to, formulas, procedures, processes, materials, client lists and vendor
lists (2) information marked or designated by Employer as confidential (3)
information in written form which is known by the Employee to be treated by
Employer as confidential and (4) information provided to employee by third
parties which Employer is obligated to keep confidential. Employee agrees as
follows:
(a) Employee will not copy, transmit, reproduce, summarize, quote or make
any commercial or other use whatsoever of Employer's confidential
information except as may be necessary in the performance of his
duties for Employer.
(b) Employee will exercise the highest degree of care in safeguarding
Employer's confidential information against loss, theft or other
inadvertent disclosure and agree generally to take all steps
necessary to ensure the maintenance of confidentiality.
(c) Upon termination of Employee's employment, or as otherwise requested
by Employer, Employee will deliver promptly to Employer all of
Employer's confidential information in whatever form that may be in
Employee's possession or under Employee's control.
(d) Employee will not to disclose Employer's confidential information
directly or indirectly under any circumstances or by any means to any
third person without the express written consent of Employer.
(e) Information that Employee brings to Alyn Corp. prior to his
Employment that is public information or the sole property of the
Employee shall not be deemed or classified to be part of the Employer
confidential information defined herein.
10. Non-Competition: During the Term of Employment and for a period of
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two (2) years after Employee's termination of employment, Employee shall not,
without the prior written consent of Employer, compete with Employer, its
subsidiaries, successors, or assigns, either directly or indirectly, as an
owner, member, partner, employee, officer, director or agent of any sole
proprietorship, association, partnership or corporation. For the purposes of
this paragraph, the terms "compete" and "competition" and "competitor" shall
refer to activities commercially similar to those that constitute all or any
reasonably material part of Employer's Business, in the manufacture and sales of
boron carbide based metal matrix composite materials, as such was
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constituted, or as Employee knew or reasonably expected was contemplated, at
any time during the Term of Employment.
Should any term or condition of these covenants against competition be
found to be unreasonable or excessive by any court of competent jurisdiction,
the parties agree to accept as binding in lieu thereof any lessor restrictions
which said court may deem reasonable.
Both Employer and Employee recognize that no adequate remedy at law exists
in which to enforce the terms and conditions of this Agreement. Therefore, in
the event Employee breaches the confidentiality or covenant not-to-compete
provisions of this Agreement, Employer shall be entitled to injunctive relief
prohibiting the continued breaches of the Agreement by the Employee.
11. Right to Employer Materials: Employee agrees that all documents
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relating to Employer's Business, including, but not limited to the following;
advertising literature, drawings, blueprints, notes, memorandum, specification,
devices, mechanical parts, formula, lists, materials, books, files, reports,
correspondence, records and other documents or similar electronic material
("Employer Material"), shall remain the property of Employer. Employer Materials
constitute trade secrets of Employer and shall not be disclosed to any other
party except as expressly authorized by Employer. Upon termination of
employment, for any reason, all Employer Materials shall be returned immediately
to Employer, and Employee shall not make or retain any copies thereof. Employee
acknowledges and agrees that any knowledge, information and materials in
Employee's possession relating Employer's Business which Employee possessed at
any time, shall be deemed to constitute part of Employer Materials for purposes
of this Section.
12. Inventions and Patents: Employee agrees that he will promptly and from
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time to time fully inform and disclose to Employer all inventions, designs,
improvements,and discoveries which he may hereafter have during the term of this
Agreement which pertain to or relate to the Business of Employer or to any
experimental work carried on by Employer, whether conceived by the Employee
alone or with others and whether or not conceived during regular working hours.
All such inventions, designs, improvement and discoveries shall be the exclusive
property of Employer. Employee shall assist Employer to obtain patents on all
such inventions, designs, improvements, and discoveries deemed patentable by
Employer and shall execute all documents and do all things necessary to obtain
letters patent, vest Employer with full and exclusive title thereto, and protect
the same against infringement by others. This provision shall apply with equal
force and effect to any items that may be subject to copyright or trademark
protection. This provision does not apply to an invention for which no
equipment, supplies, facility or trade secret information of the Employer was
used and which was developed entirely on the Employee's own time, and (a) which
does not relate, at the time the invention is conceived or reduced to practice,
to (1) the Business of Employer, or (2) actual or demonstrably related
anticipated research or development of Employer; or (b) which does not result
from any work performed by the Employee for the Employer. The provisions set
forth in the preceding sentence
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shall not, however, in any way authorize Employee to engage in any such
activities set forth therein in contravention of the provisions of his duties
and obligations hereunder
13. Termination:
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(a) The Employer may terminate the employment of Employee hereunder
for Cause at any time and without prior Notice or for any other reason on
three (3) months' Notice in writing to the Employee. Employee may terminate
his employment hereunder at any time on three (3) months' written Notice to
the Employer, or on two (2) weeks' notice after the last period provided in
Section 14(e) hereof.
(b) If the Employer terminates Employee's employment for "Cause"
(as defined below) or Employee terminates his employment for any reason
other than an Employer's Breach (as defined herein) then the Employer shall
pay Employee all accrued and unpaid Base Salary and benefits (including
accrued but unused vacation time) through the termination date and Employer
shall have no further obligations hereunder.
(c) If the Employer terminates Employee's employment other than for
Cause, or if Employee terminates his employment on account of an Employer's
Breach or as a result of Employee's death or disability, then the Employer
shall, subject to the Employee's compliance with Sections 10, 11, 12 and 13
hereof, pay Employee (i) all accrued and unpaid Base Salary and benefits
(including accrued but unused vacation time) through the termination date
and (ii) continued Base Salary until the earlier of (A) the expiration of
the then current Term without any further extensions thereof, or (B) the
date which is six (6) months after the termination date and thereafter
Employer shall have no further obligations hereunder. Any amounts paid
pursuant to this Section 14(c) shall be reduced by the amount of any
disability benefits or life insurance proceeds paid to Employee or
Employee's beneficiary pursuant to a policy maintained by Employer.
(d) The phrase "Cause" means any of the following:
(i) breach by Employee of Sections 10, 11, 12 or 13 of
this Agreement;
(ii) material breach of any other provision of this
Agreement by Employee (other than any such breach resulting from
Employee's incapacity due to physical or mental illness), if that
breach is not remedied within 30 days after written notice to
Employee describing the acts alleged to constitute Cause;
(iii) any act of fraud, misappropriation, embezzlement or
similar willful and malicious conduct by Employee against the
Employer; or
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(iv) indictment of Employee for a felony or any conviction
of, or guilty plea by Employee to, a crime involving moral turpitude
if that crime of moral turpitude tends or would reasonably tend to
bring the Employer into disrepute.
(e) The phrase "Employer's Breach" shall mean Employer's material
breach of the terms of this Agreement if such breach is not remedied within
45 days after written notice to Employer describing the acts alleged to
constitute such material breach. Notwithstanding anything herein to the
contrary, Employee's termination shall not be on account of Employer's
Breach unless it occurs within five (5) days after the expiration of the
45-day period referred to in this paragraph.
(f) The phrase "disability" shall mean a physical or mental
disability which renders Employee incapable of satisfactorily performing
his duties under the Agreement for a period of 90 days out of any 180
consecutive days.
14. Successors and Assigns: The rights and obligations of Employer under
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this Agreement shall inure to the benefit of and be binding upon the successors
and assigns of Employer, and the rights and obligations of Employee under this
Agreement shall inure and be binding upon his heirs, executors and
administrators.
15. Definitions: For purposes of this Agreement unless the context
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indicates otherwise, the term "Employer" shall be deemed to also include any
corporation which is in control of, controlled by or under common control with
Employer, whether or not Employee is directly employed by such other corporation
or corporations.
16. Notices: Any notice to be given to Employer under the terms of this
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Agreement shall be addressed to the President of the Employer at 00000 Xxxx
Xxxxxx, Xxxxxx, XX 00000, with a copy to the Chief Operating Officer, and any
notice to be given to Employee shall be addressed to him at his home address
last shown on the records of Employer, or at such other address as either party
may hereafter designate in writing to the other. Any such notice (except notice
of a change of address) shall have been deemed duly given when enclosed in a
properly sealed envelope or wrapper addressed as aforesaid, registered or
certified, and deposited (postage and registry or certification fee prepaid) in
a post office or branch post office regularly maintained by the United States
Government. Notice of a change of address shall be deemed given only when
received.
17. Waiver: Except as provided in Section 14(e), either party's failure
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to enforce any provision or provisions of this Agreement shall not in any way be
construed as a waiver of any such provision or provisions, or prevent that party
thereafter from enforcing each and every other provision of this Agreement. The
rights granted both parties herein are cumulative and shall not constitute a
waiver of either party's right to assert all other legal remedies available
under the circumstances.
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18. Governing Law and Binding Effect: This Agreement shall be
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interpreted and construed in accordance with the laws of the State of California
and shall inure to the benefit of and be binding upon the parties hereto and
their heirs, personal representatives, successors and assigns.
19. Captions and Paragraph Headings: Captions and paragraph headings
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used herein are for convenience only, are not a part of this Agreement, and
shall not be used in construing it.
20. Severability: The invalidity or unenforceability or any provision
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hereof or any part of any provision hereof shall in no way affect the validity
or enforceability of any other provision or part hereof, and this Agreement
shall be interpreted, construed and enforced as though the invalid or
unenforceable provision were not contained herein.
21. Counterparts: This Agreement may be executed in counterparts, each
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of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
22. Entire Agreement: This Agreement supersedes all prior agreements and
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understandings between the parties and may not be modified or terminated orally.
No modification, termination, or attempted waiver shall be valid unless in
writing and signed by the party against whom the same is sought to be enforced.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
day and year first set forth above.
EMPLOYER: Alyn Corporation
A Delaware Corporation
By: [SIGNATURE APPEARS HERE]
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Title: Chief Operating Officer
EMPLOYEE:
/s/ X. X. Xxxxxxx
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X. X. Xxxxxxx
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