Exhibit 10.3.3.
EMPLOYMENT AGREEMENT
THIS AGREEMENT made on November 20, 1996, by and between Ballantyne of
Omaha, Inc., (Ballantyne), an Omaha corporation with offices at 0000 XxXxxxxx
Xxxxxx, Xxxxx, Xxxxxxxx 00000 (the "Company") and Xxx X. Xxxxxxx, an
individual residing at 0000 Xxxxxxxxxx, XxXxxxx, Xxxxxxxxxx 00000 (the
"Employee").
W I T N E S S E T H:
WHEREAS, the employee has been a key employee of Ballantyne for many
years, and in connection therewith entered into an employment agreement with
Ballantyne which was dated April 12, 1993.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties intending to be legally bound agree as follows:
1. TERMINATION OF PRIOR EMPLOYMENT AGREEMENT
The employment agreement between Ballantyne and the Employee,
dated April 12, 1993, is hereby terminated and shall be of no force and
effect.
2. EMPLOYMENT. The Company hereby employs the Employee and the
Employee hereby agrees to be employed by the Company upon the terms and
conditions hereinafter set forth. The Employee agrees to serve as Senior Vice
President of Ballantyne of Omaha, Inc.
3. DUTIES AND SERVICES.
(a) The Employee shall perform such services as may be assigned
to the Employee by the Chairman, President, or Board of Directors of
Ballantyne of Omaha, Inc.
(b) The Employee agrees to devote all of the Employee's time and
efforts to the performance of the Employee's duties as an employee of the
Company. The Employee shall not during the term hereof perform any services
for any person, firm or corporation, other than as approved in writing by the
Company. The prohibitions of this section shall apply to indirect activities
of the Employee as well as direct activities, and will accordingly prohibit
activities of persons with whom the Employee is "affiliated," as that term
is defined under the Securities Act of 1933, as amended, and the Rules and
Regulations thereunder.
(c) The Employee shall undertake such travel as may be necessary
or desirable to promote the business and affairs of the Company.
4. TERM.
(a) Except as otherwise hereinafter specifically provided, the
term of this employment agreement shall be for a period of five years from
the date hereof.
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(b) Either party may give notice to the other of its intention
to extend the term of this employment agreement within 120 days of its then
expiration date. In the event no such notice is given, the term described at
subparagraph (a) above shall automatically continue for an additional year,
and this subsection (b) shall be applicable again within such extension.
(c) This Agreement may be terminated by the Company, at any
time, at its discretion, upon the Employee's death, inability to perform or
incapacity (being defined as inability to perform normal activities and
functions for a period of one hundred eighty consecutive days), or for cause.
A termination for cause for purposes of this Agreement shall be that the
Employee (i) acted dishonestly or incompetently or engaged in willful
misconduct in the performance of the Employee's duties, (ii) breached a
fiduciary duty to the Company, (iii) intentionally failed to perform
reasonable assigned duties, (iv) willfully violated any law, rule or
regulation (other than minor traffic violations or similar offenses) or any
final cease and desist order, or (v) breached this Agreement and such breach
is not cured by Employee after ten (10) days written notice.
(d) This Agreement may be terminated by the Employee in the
event the Company breaches this Agreement and such breach is not cured by the
Company after 10 days notice.
(e) In the event the Company shall be sold, whether by a sale of
assets or stock, such sale will automatically trigger a simultaneous renewal
of the term of this Agreement as provided in paragraph 4(a) hereof, with the
first day of such renewal term being the day of closing of the sale, and this
Agreement shall remain in full force and effect.
5. COMPENSATION.
(a) BASIC COMPENSATION. For all of the services to be rendered
by the Employee in any capacity hereunder, the Company shall pay the Employee
salary at the annual rate of ninety-two thousand five hundred dollars.
Effective January 1, 1997 such annual salary will be increased to one hundred
five thousand dollars and the Company shall review such salary annually as of
January 1 during each subsequent year of this Agreement but in no event shall
the basic compensation in each subsequent year be less than the aforesaid
amount. The compensation paid hereunder to the Employee shall be paid in
accordance with the payroll practices conducted by the Company and shall be
subject to the customary withholding taxes and other employment taxes as
required with respect to compensation paid by a corporation to an employee.
(b) The Company agrees to furnish an automobile, selected by the
Company, for the use of the Employee. All expenses for the maintenance,
insurance and upkeep of the automobile shall be borne by the Company.
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6. EXPENSES AND VACATIONS.
(a) The Company shall reimburse the employee for all reasonable
and necessary travel and entertainment expenses incurred by the Employee in
the performance of the Employee's duties hereunder upon submission of
vouchers and receipts evidencing such expenses.
(b) The Employee shall be entitled to vacation during each
twelve months of employment in accordance with applicable Company policy. All
vacations shall be in addition to recognized national holidays. During all
vacations, the Employee's compensation and other benefits as stated herein
shall continue to be paid in full. Such vacations shall be taken only at
times convenient for the Company, as approved by the President.
7. OTHER BENEFITS. In addition to the compensation and to the
rights provided for elsewhere in this agreement, the employee shall be
entitled to participate in each plan of the Company now or hereafter adopted
for the benefit of executive employees of the Company, to the extent
permitted by such plans and by applicable law, including, but not limited to,
(i) profit sharing plan, (ii) medical expense insurance program, (iii)
pension plan, and (iv) incentive compensation plan.
8. DISCLOSURE OF INFORMATION. The Employee acknowledges that the
Company's trade secrets, as they may exist from time to time, including, but
not limited to, the Company's list of customers, processes, ideas, plans,
programs, procedures and know how, are valuable, special and unique assets of
the Company's business, access to and knowledge of which are essential to the
performance of the Employee's duties hereunder. The parties agree that the
Employee will not, during or after the term of the Employee's employment by
the Company, disclose such secrets to any person, firm, corporation,
association or other entity or use such trade secrets for any reason or
purpose whatsoever, nor shall the Employee make use of any such property for
the Employee's own purposes or for the benefit of any person, firm,
corporation or other entity (except the Company) under any circumstances
during or after the term of the Employee's employment. Nothing in this
section shall limit the Employee's right to carry the Employee's accumulated
career knowledge and professional skills to any future employment, subject to
the specific limitations of the foregoing provisions of this section and the
restrictive covenant elsewhere set forth herein.
9. RESTRICTIVE COVENANT. The Employee agrees that at the expiration
of this Agreement or at termination for any reason whatsoever, the Employee
shall not, for a period of three years thereafter, engage in any business, as
principal employee or otherwise, which competes with the Company in the
United States with respect to the manufacture, production, assembling,
distribution, or sale of products which are the same or similar or related to
use or function to those which are manufactured, assembled, sold, or being
developed by the Company at any time during the Employee's employment with
the Company, or directly or indirectly solicit or contact any present or past
(one having active contact within twelve months prior to termination of the
Employee's employment) distributor, dealer, customer, client, employee or
consultant of the Company (or the
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Company's subsidiaries or affiliates). In the event that this agreement is
not renewed and the Employee is terminated, the Employee will be entitled to
one week of severance for each year of employment. In addition all existing
insurance benefits shall remain in force during the severance period. It is
the desire and intent of the parties that the provision of this section shall
be enforced to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought.
The parties hereto recognize and agree that in the event of the breach
of any provision of this covenant, there is not a remedy at law adequate to
protect the rights and interest of the Company set forth herein, and the
parties therefor agree that the Company shall have the right to an injunction
enjoining the Employee from violating the provisions of this section. Nothing
herein shall be construed as prohibiting the Company from pursuing any other
remedies available for such breach or threatened breach, including the
recovery of damages from the Employee. In the event that any restriction
contained in this covenant is deemed by any court to be void because it is
for an excessive period of time or restricts the Employee from engaging in a
business competing with the Company in an excessive geographical area, it is
agreed by the parties that said court shall have the right to decrease the
time period or geographical area covered by such restriction to a time period
and/or geographical area which is not excessive.
It is understood and agreed that in the event the Company terminates the
Employee without cause or if the Company breeches this Agreement and does not
cure said breech as provided in paragraph 3(d), the provisions of paragraph 9
are null and void.
10. INVENTIONS AND DISCOVERIES. The Employee hereby sells,
transfers and assigns to the Company or to any person or entity designated by
the Company all of the entire right, title and interest of the Employee in
and to all inventions, ideas, disclosures and improvements, whether patented
or unpatented, and copyrightable material made or conceived by the Employee,
solely or jointly, during the term hereof which relate to the products and
services provided by the Company or which otherwise relate or pertain to the
business, functions or operations of the Company. The Employee agrees to
communicate promptly and to disclose to the Company in such form as the
Employee may be required to do so all information, details and data
pertaining to such inventions, ideas, disclosures and improvements and to
execute and deliver to the Company such formal transfers and assignments and
such other papers and documents as may be required of the Employee to permit
the Company or any person or entity designated by the Company to file and
prosecute the patent applications and, as to copyrightable material, to
obtain copyrights thereof.
11. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by certified mail,
return receipt requested, to the Employee's residence, in the case of the
Employee, or to the Company, at the principal offices of Ballantyne of Omaha,
Inc., attention of the President.
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12. CONSTRUCTION OF AGREEMENT. This Agreement is intended to be
construed and enforced in accordance with the laws of the State of Nebraska
and without regard to or aid of any presumption or other rule requiring
construction against the party drawing or causing this Agreement to be drawn.
13. COMMENCEMENT OF ACTIONS OR PROCEEDINGS. Any action or
proceeding brought by a party hereto against another and arising out of the
Agreement or any breach thereof, may be commenced by the service of process
in the same manner as a notice may be served under this Agreement.
14. NON-WAIVER. No provision of this agreement shall be deemed to
have been waived except if such waiver is contained in a notice given to the
party claiming such waiver has occurred and no such waiver shall be deemed to
be a waiver of any other or further similar or dissimilar obligation or
liability of the party in whose favor the waiver was given.
15. ILLEGALITY. If any provision or provisions hereof (or any part
thereof) or the application thereof to any particular facts or circumstances
shall be illegal and unenforceable by reason of any statute or rule of law,
the remaining provisions (or parts thereof) of this Agreement or the
application of the particular provision or provisions (or parts thereof) to
the other facts or circumstances shall not be affected thereby and shall
remain in full force and effect, it being the intention by this section to
make clear the agreement of the parties that this Agreement shall be enforced
insofar as it may be enforced consistent with law.
16. HEADINGS. The headings of the sections herein are for
convenience only and are not part of this Agreement and shall not affect the
interpretation thereof.
17. ENTIRE AGREEMENT. This Agreement contains the entire agreement
of the parties. All prior agreements or understandings are merged herein. It
may not be changed orally, but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification, extension
or discharge is sought.
18. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon,
and shall inure to the benefit of, the successors and assigns of the Company,
whether by merger, consolidation, sale or lease of assets, or otherwise.
19. DEFINITION AND GENDER. All terms used herein shall have their
defined meaning, unless the context clearly indicates otherwise. Pronouns for
defined terms shall be construed as masculine, feminine, or neuter, or in the
singular or plural, as the sense requires, and to include any and all
successors and substitutions therefor.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first above written.
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
President and Chief Executive Officer
/s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx
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