EMPLOYMENT AGREEMENT
This AGREEMENT made as of the 1st day of July, 1996 (hereinafter, the
"Effective Date"), by and between Bigmar, Inc., a Delaware corporation
(hereinafter, "the Employer" or "Employer"), and Xxxxxx X. Xxxxx, Xx.
(hereinafter, "the Executive" or "Executive").
1. Commencing on the Effective Date of this Agreement, Employer shall
employ Executive as Vice President Quality Assurance to perform the duties
normally incident to such positions.
2. Executive agrees to devote all of Executive's business time, efforts,
skills and attention to fulfill Executive's duties and responsibilities
hereunder faithfully, diligently and competently.
3. The term of this Agreement shall commence upon the Effective Date and
shall terminate two years thereafter, unless sooner terminated as hereinafter
provided, and shall be subject to automatic annual renewal thereafter unless at
least sixty days prior to the end of the term of this Agreement or any annual
renewal period Executive or Employer shall give written notice to the other that
this Agreement shall not be renewed.
4. Employer will pay to Executive as compensation for all services to be
rendered by Executive hereunder a salary at the rate of One Hundred Thousand and
00/100 ($100,000.00) Dollars ("Base Salary") for the twelve-month period
commencing on the Effective Date and for each twelve-month period thereafter
(each a "Twelve-Month Period") subject to annual cost of living increases as may
be approved by and in the discretion of the Board of Directors of Employer. The
Base Salary shall be payable once weekly.
5. Employer may pay to Executive bonuses (in cash or stock options) as
may be approved by and in the discretion of the Board of Directors of Employer.
The performance of Executive shall be reviewed by the Executive Vice-President
on or about each anniversary of the Effective Date.
6. Employer will reimburse Executive for all reasonable travel and
business expenses incurred by Executive in connection with performance of
Executive's services hereunder in accordance with the usual practices and
policies of Employer in effect from time to time, upon presentation of vouchers.
7. Executive will be eligible for and will be afforded an opportunity to
participate in all benefit plans and programs which are currently afforded or
which may be afforded during the term of this Agreement to other executive
officers of Employer, including, without limitation, group insurance, health
hospital, dental, major medical, life and disability insurance and stock option
plans or other similar fringe benefits.
8. Executive will be entitled to four weeks vacation during each
Twelve-Month Period.
9. Employer will provide either directly to Executive or on Executive's
behalf, an automobile allowance in the amount of $3,000
for each Twelve-Month Period.
10. Executive represents and warrants that, to the best of Executive's
knowledge, Executive is in good health.
11. In the event of Executive's death during the term of this Agreement,
this Agreement shall terminate immediately, provided, however, that Executive's
legal representatives shall be entitled to receive the Base Salary which would
otherwise have been due Executive had Executive worked through the end of the
month of Executive's death plus two additional months of the Base Salary for the
Twelve-Month Period in which Executive died.
12. If during the term of this Agreement, Executive is unable to perform
Executive's duties hereunder on account of illness or other incapacity, and such
illness or other incapacity shall continue for a period of more than three
consecutive months during any Twelve Month Period, Employer shall have the
right, on thirty days' notice to Executive, given after such three month period,
to terminate this Agreement. In the event of any such termination Employer shall
be obligated to pay to Executive the Base Salary which would otherwise be due
Executive until the end of the month during which the termination occurred plus
four additional months of the Base Salary for the Twelve-Month Period in which
such termination occurred. If, prior to the date specified on such notice,
Executive's illness or incapacity shall have ceased and Executive shall have
resumed the performance of Executive's duties hereunder, Executive shall be
entitled to resume Executive's employment hereunder as though such notice had
not been given. Employer's Board of Directors shall determine in good faith,
upon consideration of medical evidence satisfactory to it, whether Executive by
reason of physical or mental disability shall be unable to perform the services
required of Executive hereunder.
13. If Employer shall terminate Executive's employment hereunder for
Cause, as hereinafter defined, or if Executive shall voluntarily leave
Executive's employment hereunder, Employer will pay to Executive within ten days
after the termination of such Agreement an amount equal to the amount which
Executive would have earned as the Base Salary hereunder through the end of the
then current month in which such termination or departure occurred. Cause shall
mean any gross malfeasance directly and materially affecting Employer or
conviction of a felony directly and materially affecting Employer, each of
determined in the sole discretion of Employer.
14. If Executive's employment is terminated by Employer without Cause,
this Agreement shall terminate immediately, provided, however, that Employer
shall be obligated to pay Executive the Base Salary had Executive worked through
the last day of the month in which Executive was terminated and three months of
the Base Salary for the Twelve-Month Period in which Executive was terminated.
15. Executive covenants and agrees that any work or research, or the
result thereof, including without limitation, inventions, processes or formulae
made, conceived or developed by Executive, alone or in connection with others,
during Executive's employment
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with Employer, whether within or without the usual hours of employment,
which are related to the business, research, development work or field of
operation of Employer, or any of its subsidiaries or affiliates, shall to the
extent of Executive's interest therein be the sole and exclusive property of
Employer. Executive further agrees to disclose all such inventions, processes
and formulae completely and in writing to the Board of Directors of Employer and
to no other persons unless so directed in writing by the Board of Directors of
Employer. To the extent of Executive's interest therein, all papers and records
of every kind, relating to any invention, process, formula, improvement or
patent included within the terms of this Agreement, which shall at any time come
into the possession of Executive shall be the sole and exclusive property of
Employer and shall be surrendered to Employer upon termination of Executive's
employment by Employer or upon Employer's request at any other time either
during or after the termination of such employment.
16. Executive covenants and agrees with Employer that Executive has not,
and will not, during Executive's employment with Employer and thereafter,
directly or indirectly, use, communicate, disclose or disseminate to anyone
(except to the extent reasonably necessary for Executive to perform his duties
hereunder, except as required by law or except if generally available to the
public otherwise than through use, communication, disclosure or dissemination by
the Executive) any materials, documents or records containing confidential
information concerning the businesses or affairs of Employer or of any of its
affiliates or subsidiaries which Executive may have acquired in the course of or
as incident to Executive's employment or prior dealings with Employer or with
any of its affiliates or subsidiaries, including, without limitation, customer
lists, business or trade secrets of, or methods or techniques used by Employer
of any of its affiliates or subsidiaries in or about their respective
businesses, or any information whatsoever concerning the customers or suppliers
of any of them.
17. Executive acknowledges that Executive's services and
responsibilities are of particular significance to Employer and that Executive's
position with Employer has given and will give Executive a close knowledge of
its policies and trade secrets. Since the Employer is in a creative and
competitive business, Executive's continued and exclusive service to Employer
under this Agreement is of a high degree of importance.
Executive convenants and agrees with Employer that Executive has not,
and will not during Executive's employment with Employer and for a period of two
years after the termination of Executive's employment with Employer, in any
manner, directly or indirectly, (i) induce or attempt to influence any present
or future officer, employee, lessor, lessee, licensor, licensee or agent of
Employers or its subsidiaries or its affiliates to leave its respective employ
or solicit or divert or service any customers or clients of Employer or its
subsidiaries or its affiliates or (ii) alone or as a partner, officer, director,
employee, consultant or stockholder (except for ownership of no more than 5% of
the capital stock) of any corporation, partnership or other entity be
competitive with the business of Employer or its subsidiaries or affiliates. For
purposes of subdivision (ii) above of this
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paragraph 17, (a) a business shall be presumed to be competitive if it
conducts in whole or in part anywhere in Switzerland, Italy, Germany and the
United States any business in which Employer, its subsidiaries or affiliates has
engaged in or engages in during the term of Executive's employment with Employer
or which Employer, its subsidiaries or affiliates contemplated or contemplates
engaging in, and the burden of proving otherwise shall be on Executive, and (b)
the business activities of a subsidiary or division of a publicly held
corporation shall not be deemed to include the business activities of other
subsidiaries or divisions of such publicly held corporation.
Nothing herein shall restrict or otherwise limit Executive from managing
Executive's private investments which are not competitive with the businesses of
Employer. Executive shall be permitted to serve as a director of companies which
are not competitive with the businesses of Employer, so long as such services do
not interfere with the performance of Executive's duties under this Agreement.
18. Executive acknowledges that the remedy at law for any breach or
threatened breach by Executive of the covenants contained in paragraphs 15, 16,
and 17 would be wholly inadequate, and therefore Employer or its subsidiaries or
its affiliates shall be entitled to preliminary and permanent injunctive relief
and specific performance thereof. Paragraphs 15, 16, and 17 constitute
independent and separable covenants that shall be enforceable notwithstanding
rights or remedies that Employer or its subsidiaries or its affiliates may have
under any other provision of this Agreement, or otherwise. If any or all of the
foregoing provisions of paragraphs 15, 16, and 17 are held to be unenforceable
for any reason whatsoever, it shall not in any way invalidate or affect the
remainder of this Agreement which shall remain in full force and effect. If the
period of time or geographical areas specified in paragraphs 15, 16, and 17 are
determined to be unreasonable in any judicial proceeding, the period of time or
areas of restriction shall be reduced so that this Agreement may be enforced in
such areas and during such period of time as shall be determined to be
reasonable.
19. Executive represents and warrants to Employer that since
commencement of Executive's employment with Employer, Executive was not, is not
now and, in the future will not without the approval of the Board of Directors
of Employer, become, under any obligation of a contractual or other nature to
any person, firm or corporation which is inconsistent or in conflict with this
Agreement, or which would prevent, limit or impair in any way the execution of
this Agreement or the performance by Executive of Executive's obligations
hereunder and Executive will indemnify and hold harmless Employer, its
Directors, officers and employees against and in respect of all liability, loss,
damage, expense or deficiency resulting from any misrepresentation, or breach of
any warranty or agreement made by Executive in connection with Executive's
employment hereunder or under Executive's Original Employer Agreement.
20. The waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed as a waiver of any subsequent
breach thereof.
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21. Any and all notices referred to herein shall be sufficient if
furnished in writing and sent by certified mail, return receipt requested, to
the respective parties at the addresses set forth below, or such other address
as either party may from time to time designate in writing.
To Executive: To Employer:
Xxxxxx X. Xxxxx, Xx. Bigmar, Inc.
0000X Xxxxxxxxx Xxxxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
22. This Agreement shall be binding upon, and shall inure to the benefit
of, Employer and its successors and assigns, and Executive and Executive's legal
representatives, heirs, legatees and distributees, but neither this Agreement
nor any rights hereunder shall be assignable, encumbered or pledged by
Executive.
23. This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes any and all
prior written or oral agreements between Employer and Executive with respect to
the subject matter hereof. No modification, amendment or waiver of any of the
provisions of this Agreement shall be effective unless in writing and signed by
both parties hereto.
24. This Agreement shall be construed and enforced in accordance with
the laws and decisions of the State of Delaware.
25. This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same Agreement. Delivery of an executed counterpart of a signature page
to this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
26. If any provisions or part of any provision of this Agreement is held
for any reason to be unenforceable, the remainder of this Agreement shall
nevertheless remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the 1st day of July, 1996.
BIGMAR, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President
/s/ Xxxxxx X. Xxxxx, Xx.
--------------------------
Xxxxxx X. Xxxxx, Xx.
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