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Exhibit 10.14
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("AGREEMENT") dated as of May 24, 1999 is entered into
by and between Texel Corporation, a Virginia corporation (the "Company"), and E.
Xxxxx Xxxxxxxxxx (the "Executive").
RECITALS
The Company, through its Board of Directors, desires to retain the
services of Executive, and Executive desires to be retained by the Company, on
the terms and conditions set forth in this Agreement.
AGREEMENT
For and in consideration of the foregoing and of the mutual covenants
of the parties herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. EMPLOYMENT. The Company hereby employs Executive to serve in the
capacities described herein and Executive hereby accepts such employment and
agrees to perform the services described herein upon the terms and conditions
hereinafter set forth.
2. TERM. The term of Executive's employment pursuant to this Agreement
shall commence on the date hereof and shall terminate at the close of business
on the third anniversary of the date hereof, which period is referred to herein
as the "Initial Term." The Initial Term shall be subject to earlier termination
in accordance with the other terms and conditions set forth herein. Upon the
expiration of the Initial Term, the Executive's employment shall continue
automatically for periods of twelve calendar months (each such period being
referred to herein as an "Additional Term") unless, at least 30 days prior to
the termination of the Initial Term or an Additional Term, as the case may be,
the Executive or the Company gives notice to the other of its intention to
terminate the Executive's employment at the end of such Initial Term or
Additional Term.
3. DUTIES. Executive shall serve as and have the title of President of
the Company. The Executive's principal place of employment shall be in Reston,
Virginia. Executive agrees to devote his full business time, energy, skills and
best efforts to such employment while so employed. Nothing in this Agreement
shall preclude Executive from engaging, so long as, in the reasonable
determination of the Board of Directors, such activities do not interfere with
his duties and responsibilities hereunder, in charitable and community affairs,
from managing any passive investment made by him or from serving, subject to the
prior approval of the Board of Directors, as a member of the board of directors
or as a trustee of any other corporation, association or entity.
4. COMPENSATION. The Company shall pay Executive, and Executive agrees
to accept, base compensation at the rate of $150,000 per year, payable in equal
installments no less
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frequently than bi-weekly, through the term of this Agreement ("Base
Compensation"). The Base Compensation specified in this Section 4 may be
increased annually during the term of this Agreement in the sole discretion of
the Compensation Committee of the Board of Directors.
5. FRINGE BENEFITS.
(a) GENERALLY. Executive shall be eligible for fringe benefits
pursuant to any health and disability insurance, pension, retirement, profit
sharing, stock option, or other employee fringe benefit plan that either the
Company or Orius Corp. ("Orius"), makes available to employees of Orius and/or
its direct or indirect subsidiaries and for which Executive will qualify
according to his eligibility under the provisions thereof, giving effect to
Executive's prior years of service with the Company for purposes of such
eligibility.
(b) ORIUS' PRESIDENTS' BONUS PLAN. Executive shall be eligible
to participate in the Orius Presidents' Bonus Plan once it has been approved by
the Board of Directors of Orius.
(c) HEALTH AND DISABILITY INSURANCE. Executive shall be
entitled to participate in health and disability insurance plans that the
Company offers to other executive officers of the Company from time to time,
which plans shall include terms and provisions which, in the aggregate, are no
less favorable than those applicable to Executive in his capacity as President
of the Company immediately prior to the execution hereof.
(d) VACATION, HOLIDAYS AND ILLNESS. During the term of this
Agreement, Executive shall be entitled to days off for vacation (not less than
four weeks per year), holidays, illness or other appropriate purposes.
(e) OTHER BENEFITS. During the term of his employment by the
Company, Executive shall be provided with the full-time use of a motor vehicle
selected by the Company's Board of Directors but at least comparable to the
motor vehicle used by Executive as of the date of this Agreement.
6. EXPENSES. Except as otherwise agreed to herein, the Executive shall
be reimbursed for all usual expenses incurred on behalf of the Company, in
accordance with Company practices and procedures, provided that:
(a) Each such expenditure is of a nature deductible under
Section 162 of the Internal Revenue Code on the Federal income tax return of the
Company as a business expense and not as deductible compensation to Executive;
and
(b) Executive furnishes the Company with adequate documentary
evidence required by the Code or any regulation promulgated thereunder for the
substantiation of such expenditures as a deductible business expense of the
Company and not as deductible compensation to Executive. Executive agrees that,
if at any time, any payment made to Executive by the Company as a business
expense reimbursement shall be disallowed in whole as
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a deductible expense to the Company by the appropriate taxing authorities,
Executive shall reimburse the Company to the full extent of such disallowance.
7. TERMINATION. The term of Executive's employment under this Agreement
may be terminated prior to expiration of the Initial Term or any Additional Term
provided in Section 2 hereof only in accordance with the following Sections.
(a) FOR CAUSE. This Agreement may be immediately terminated by
the Company for Cause. For purposes of this Agreement, the term "Cause" shall
mean the termination of the Executive by the Board of Directors of the Company
as a result of the existence or occurrence of one or more of the following
conditions or events:
(i) a material breach by the Executive of any
provision of this Agreement, or the willful and continued failure of Executive
to perform his duties under his employment with the Company, which failure or
breach shall continue for more than thirty (30) days after written notice
thereof is received by the Executive;
(ii) performance by the Executive (in his capacity as
such, and not as a party to that certain Stock Purchase Agreement dated May ___,
1999 among the Executive, NATG Holdings, LLC and Orius) of any act of fraud or
material misrepresentation or a material act of misappropriation which results
or is intended to result in Executive's personal enrichment at the expense of
the Company;
(iii) conviction of the Executive of any crime which
constitutes a felony offense involving violence (but not involving a motorized
vehicle) or fraud, embezzlement, theft or business activities;
(iv) the entry of a judgment or order enjoining or
preventing the Executive from such activities as are essential for the Executive
to perform his services as required by this Agreement unless such judgment or
order is the subject of an appeal or other proceedings to set it aside or modify
it and such proceedings are timely filed and being pursued with due diligence;
or
(v) Executive has engaged in willful and deliberate
conduct or activities intended to materially damage the business of the Company,
it being understood that neither conduct or activities pursuant to the
Executive's exercise of his good faith business judgment nor unintentional
physical damage to properties by the Executive shall be a ground for such a
determination
(b) WITH GOOD REASON. This Agreement may be immediately
terminated by the Executive for Good Reason. For purposes of this Agreement, the
term "Good Reason" shall mean the termination by the Executive of his employment
with the Company as a result of the existence or occurrence of one or more of
the following conditions or events:
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(i) the failure by the Company to comply with the
provisions of Section 4, which failure or breach shall continue for more than
thirty (30) days after the date on which the Board of Directors of the Company
receives written notice;
(ii) the requirement by the Company that the
Executive be based at any office location that is greater than fifty (50) miles
from Executive's current office location;
(c) MUTUAL. Executive's employment under this Agreement may be
terminated upon mutual written agreement of the Company and the executive.
(d) DEATH. In the event of the death of Executive, this
Agreement shall terminate immediately.
(e) DISABILITY. If, during Executive's employment under this
Agreement, Executive shall become permanently disabled and unable to perform his
duties as required herein ("Disability") for a consecutive period of one hundred
eighty (180) days, then the Company may, upon thirty (30) days written notice to
Executive, terminate Executive's employment under this Agreement.
8. DEATH AND DISABILITY. In the event of the termination of Executive's
employment under this Agreement by reason of the Executive's death or
Disability, the Company shall pay Executive (or his heirs and/or personal
representatives), Base Compensation through a date which is one year after the
date of Death or the date of termination for Disability as provided in Sections
7(d) and 7(e), respectively.
9. SEVERANCE. In the event of the termination of Executive's employment
under this Agreement prior to the expiration of the Initial Term or of any
Additional Term, for any reason other than Executive's death or Disability, the
Company shall provide the payments and benefits to Executive as indicated below:
(a) WITH CAUSE OR VOLUNTARY TERMINATION BY EXECUTIVE WITHOUT
GOOD REASON. If Executive is terminated for Cause (as defined in Section 7(a) of
this Agreement), or if Executive voluntarily terminates his employment with the
Company without Good Reason (as defined in Section 7(b) of this Agreement), the
Company shall be obligated only to continue to pay to Executive his Base
Compensation, if any, earned up to the date of termination and shall reimburse
the Executive for any expenses to which the Executive is due reimbursement by
the Company under Section 6 hereof. In addition, the Company shall pay vested
benefits, if any, owed to Executive under any plan provided for Executive under
Section 5 hereof in accordance with the terms of such plan as in effect on the
date of termination of employment under this Section 9(a).
(b) WITHOUT CAUSE OR TERMINATION BY EXECUTIVE WITH GOOD
REASON. In the event that the Company shall terminate the Executive without
Cause or if Executive voluntarily terminates his employment with the Company
with Good Reason during the Initial Term, the Company shall be obligated to
continue to pay full compensation and benefits to the
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Executive through and including the third anniversary of the date hereof as if
the Executive had not been so terminated. In the event that the Company shall
terminate the Executive without Cause or if Executive voluntarily terminates his
employment with the Company with Good Reason, during an Additional Term, the
Company shall be obligated to continue to pay full compensation and benefits to
the Executive through the end of such Additional Term as if the Executive had
not been so terminated.
10. CONFIDENTIAL INFORMATION. Executive recognizes and acknowledges
that he will have access to certain confidential information of the Company and
that such information constitutes valuable, special and unique property of the
Company. For the period of time which is the greater of (i) the fourth
anniversary of the date hereof or (ii) one year after the Executive is no longer
employed by the Company ("Confidentiality Period"), Executive agrees not to
disclose or use, except in the discharge of his duties and responsibilities
hereunder, any such confidential information, including without limitation,
information regarding research, developments, product designs or specifications,
manufacturing processes, "know-how," prices, suppliers, customers, costs or any
knowledge or information with respect to confidential or trade secrets of the
Company. Notwithstanding the preceding sentence, it is understood that such
confidential information does not include information that is publicly available
unless such information became publicly available as a result of a breach of
this Section 10 or information that is required by law or the order of any
governmental authority under color of law to be disclosed. Executive
acknowledges and agrees that all notes, records, reports, sketches, plans,
unpublished memoranda or other documents belonging to the Company, but held by
Executive, concerning any information relating to the Company's business,
whether confidential or not, are the property of the Company and will be
promptly delivered to it upon Executive's leaving the employ of the Company.
Executive also agrees to execute such confidentiality agreements that the Board
may adopt, and may modify from time to time, as a standard form to be executed
by all employees of the Company, to the extent such standard forms are not more
restrictive than the provisions of this Agreement.
11. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered mail to
the addresses below or to such other address as either party shall designate by
written notice to the other:
IF TO THE EXECUTIVE:
To the address set forth below his signature on the signature
page hereof.
IF TO THE COMPANY:
Xxxxxxx Xxxxxxxx
c/o Orius Corp.
0000 Xxxxx Xxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
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12. REPURCHASE PROVISIONS.
(a) Prior to a Qualified Public Offering (as that term is
defined in that certain Stockholders Agreement of Orius dated as of February 26,
1999, as amended), in the event the Executive is either terminated for Cause (as
defined in Section 7(a)) of this Agreement) or resigns from employment with the
Company other than for Good Reason ("Repurchase Termination"), all of the
Executive's shares of Common stock of Orius, whether held by Executive or
transferred by Executive to one or more transferees (collectively, the
"Executive Stock"), shall be subject to repurchase by Orius as set forth in this
Section 12 (the "Repurchase Option").
(b) Following any Repurchase Termination, Orius shall have the
right, but not the obligation, to purchase all or any portion of the Executive
Stock for the book value of such securities based on the most recent financial
statement of Orius available prior to such repurchase and without reference to
such repurchase. Such right to purchase may be exercised only once.
(c) The Board of Directors of Orius may elect to exercise the
Repurchase Option by delivering written notice (the "Repurchase Notice") to the
holder or holders of such stock within forty-five (45) days after the date of
the Repurchase Termination. The Repurchase Notice will set forth the number of
shares of the Executive Stock to be acquired from each holder, the aggregate
consideration to be paid for such shares and the time and place for the closing
of the transaction.
(d) The closing of the purchase of the Executive Stock
pursuant to the Repurchase Option shall take place on the date designated by
Orius in the Repurchase Notice, which date shall not be more than forty-five
(45) days nor less than two (2) business days after the delivery of the
Repurchase Notice. Orius shall pay for the Executive Stock to be purchased
pursuant to the Repurchase Option by delivery of (i) a check or wire transfer of
funds, (ii) a subordinated note or notes payable prior to the first anniversary
of the closing of such purchase, bearing interest at a rate per annum equal to
the prime rate of interest as announced by Citibank, N.A. and secured by a
pledge of the Executive Stock purchased, or (iii) both (i) and (ii), in the
aggregate amount of the purchase price for such shares; provided that Orius
shall use reasonable efforts to make all such repurchases with a check or wire
transfer of funds unless prohibited by law or by its lenders (in writing). Any
notes issued by Orius pursuant to this Section 12(d) shall be subject to any
restrictive covenants to which Orius is subject at the time of such purchase.
Orius shall be entitled to receive customary representations and warranties as
to title from the sellers regarding such sale and to require all sellers'
signatures be guaranteed. Orius may elect to assign its right to purchase to the
stockholders of Orius (which rights to purchase shall be distributed pro rata to
all stockholders (other than the Executive), based upon the number of votes held
by such stockholders). In the event Orius elects to assign its rights to the
other stockholders of Orius (other than the Executive) such other stockholders
shall have the same right as Orius to purchase stock pursuant to the Repurchase
Notice but shall be obligated to make payment therefor only by delivery of a
check or wire transfer of funds.
(e) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of the Executive Stock by Orius hereunder shall be
subject to applicable restrictions contained in the Florida Business Corporation
Act and in Orius's and its subsidiaries' debt and
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equity financing agreements. If any such restrictions prohibit the repurchase of
the Executive Stock hereunder which Orius is otherwise entitled or required to
make, Orius may make such repurchases as soon as it is permitted to do so under
such restrictions, but in any event within 180 days of the Repurchase
Termination.
(f) Notwithstanding anything to the contrary contained in this
Agreement, Orius's right to repurchase the Executive Stock shall terminate upon
the consummation of a Qualified Public Offering.
13. ENTIRE AGREEMENT; MODIFICATION.
(a) This Agreement contains the entire agreement of the
Company and Executive, and the Company and Executive hereby acknowledge and
agree that this Agreement supersedes any prior statements, writings, promises,
understandings or commitments between the parties hereof.
(b) No future oral statements, promises or commitments with
respect to the subject matter hereof, or other purported modification hereof,
shall be binding upon the parties hereto unless the same is reduced to writing
and signed by each party hereto.
14. ASSIGNMENT. The rights and obligations of the parties under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and permitted assigns of the parties. Neither party may assign his or its rights
or obligations under this Agreement without the prior written consent of the
other party.
15. TERMINATION. All of the provisions of this Agreement shall
terminate after the expiration of the Term of this Agreement, except that (i)
Section 10 shall only terminate upon the expiration of the Confidentiality
Period and (ii) Section 12 shall only terminate upon a Qualified Public
Offering.
16. NO MITIGATION. The Executive shall not be required to mitigate the
amount of any payments due hereunder upon termination of Executive's employment
by seeking other employment or otherwise, nor shall the amount of any such
payments be reduced by any employment by another employer after termination of
Executive's employment hereunder.
17. MISCELLANEOUS.
(a) The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or the interpretation
of this Agreement.
(b) The failure of any party to enforce any provision of this
Agreement shall in no manner affect the right to enforce the same, and the
waiver by any party of any breach of any provision of this Agreement shall not
be construed to be a waiver by such party of any succeeding breach of such
provision or a waiver by such party of any breach of any other provision.
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(c) All written notices required in this Agreement shall be
sent postage prepaid by certified or registered mail, return receipt requested
or by overnight delivery service against receipt or by overnight delivery
service against receipt.
(d) In the event any one or more of the provisions of this
Agreement shall for any reason be held invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unimpaired, and the invalid,
illegal or unenforceable provision shall be replaced by a mutually acceptable
valid, and enforceable provision which comes closest to the intent of the
parties.
(e) The prevailing party in any litigation brought to enforce
the provisions contained in this Agreement shall be entitled to reimbursement
from the nonprevailing party for reasonable attorneys' fees and expenses
incurred in connection with such litigation.
(f) This Agreement may be executed in any number of
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
(g) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
TEXEL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Its:
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EXECUTIVE
/s/ E. Xxxxx Xxxxxxxxxx
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E. Xxxxx Xxxxxxxxxx
Address:
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