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EXHIBIT 10.18
EMPLOYMENT AGREEMENT
Employment Agreement dated and effective as of November 9, 1998 (this
"AGREEMENT"), between ILLINOIS SUPERCONDUCTOR CORPORATION, a Delaware
corporation (with its successors and assigns, referred to as the "COMPANY"), and
XXXXXX XXXXX ("XXXXX").
PRELIMINARY STATEMENT
Xxxxx is now employed as the Vice President - Engineering and
Manufacturing of the Company. The Company desires to continue to employ Xxxxx,
and Xxxxx wishes to continue to be employed by the Company, upon the terms and
conditions set forth in this agreement.
AGREEMENT
1. EMPLOYMENT FOR TERM. The Company hereby employs Xxxxx and Xxxxx
hereby accepts employment with the Company for the period beginning on the date
of this agreement and ending on December 31, 1999 (the "TERM"), or upon the
earlier termination of the Term pursuant to Section 6 below. The end of the Term
for any reason shall end Craig's employment under this Agreement, but shall not
terminate Craig's or the Company's other obligations in this Agreement.
2. POSITION AND DUTIES. During the Term, Xxxxx shall continue to
serve as the Vice President Engineering and Manufacturing of the Company. During
the Term, Xxxxx shall also hold such additional positions and titles as the
Board of Directors of the Company (the "BOARD") or the President may determine
from time to time. During the Term, Xxxxx shall devote substantially all of his
business time and best efforts to his duties as an employee of the Company.
3. COMPENSATION.
(a) BASE SALARY. Effective as of June 11, 1998 and ending on
December 31, 1999, the Company shall pay Xxxxx a base salary at a rate of
$150,000 per annum, payable at least monthly on the Company's regular pay cycle
for professional employees.
(b) BONUSES. Xxxxx shall be eligible to receive bonuses during
the Term as determined in the sole discretion of the Board.
(c) OTHER AND ADDITIONAL COMPENSATION. Sections 3(a) and 3(b)
establish minimum salary and bonus grant levels for Xxxxx during the Term, and
shall not preclude the Board from awarding Xxxxx a higher salary or stock
options at any time, nor shall they preclude the Board from awarding Xxxxx
bonuses or other compensation in the discretion of the Board.
4. EMPLOYEE BENEFITS. During the Term, Xxxxx shall be entitled to
the employee benefits, including vacation, health and other insurance benefits,
and deferred compensation arrangements, made available by the Company to any
other employee of the Company.
5. EXPENSES. The Company shall reimburse Xxxxx for actual
out-of-pocket expenses incurred by him in the performance of his services for
the Company (in accordance with the Company's policy for such reimbursements
applicable to the Company's executive officers on the same terms generally
offered to such officers), upon the receipt of appropriate documentation of such
expenses.
6. TERMINATION.
(a) GENERAL. The Term shall end immediately upon Craig's death.
The Company may end the Term at any time for any reason or no reason, with or
without "Cause" (as defined in Section 7(a) below) in the absolute discretion of
the Board (but subject to the Company's obligations under this Agreement).
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(b) NOTICE OF TERMINATION. Promptly after it ends the Term, the
Company shall give Xxxxx notice of termination, including a statement of whether
the termination was for Cause. The Company's failure to give notice under this
Section shall not, however, affect the validity of the Company's termination of
the Term.
7. SEVERANCE BENEFITS.
(a) "CAUSE" DEFINED. "Cause" means willful malfeasance or willful
misconduct by Xxxxx in connection with his employment; Craig's gross negligence
in performing any of his duties under this Agreement; Craig's conviction of, or
entry of a plea of guilty to, or entry of a plea of nolo contendere with respect
to, any crime other than a traffic violation or infraction which is a
misdemeanor; Craig's willful and continuing breach of any written policy
applicable to all employees adopted by the Company concerning conflicts of
interest, political contributions, standards of business conduct or fair
employment practices, procedures with respect to compliance with securities laws
or any similar matters, or adopted pursuant to the requirements of any
government contract or regulation; or (v) material and continuing breach by
Xxxxx of any of his agreements in this Agreement.
(b) TERMINATION WITHOUT CAUSE. If the Company ends the Term prior
to December 31, 1999, other than for Cause, then the Company shall make the
"Severance Payment" (as defined below) to Xxxxx for and during the "Severance
Period" (as defined below). The Severance Payment shall be payable in
proportionate amounts at least monthly on the Company's regular pay cycle for
professional employees and (if the last day of the Severance Period is not the
last day of a pay period) on the last day of the Severance Period. Regardless of
anything in this Agreement to the contrary, if Xxxxx resigns as a result of a
material change, or a related series of changes taken as a whole, in the scope
or nature of his responsibilities as Vice President - Engineering and
Manufacturing of the Company, such change or changes shall be deemed to be a
constructive termination of Craig's employment by the Company without Cause for
all purposes of this Agreement, including without limitation the obligation of
the Company to make the Severance Payments during the Severance Period.
For purposes of this Agreement: (i) the term "SEVERANCE PAYMENT"
means, for the period of 180 days from the commencement of the Severance Period,
an amount equal to Craig's base salary in effect on the day prior to the date on
which the Severance Period commences; and (ii) the term "SEVERANCE PERIOD" means
the period commencing on the day following the date of termination of Craig's
employment with the Company and ending on the six-month anniversary of the date
of termination, subject to earlier termination as of the date that Xxxxx
commences full time employment with any other person or entity.
Xxxxx agrees that during the Severance Period he shall endeavor
to render reasonable advisory and consulting services to the Company with
respect to matters pertaining to the business of the Company as the Board of
Directors or the then Chairman of the Board may reasonably request in writing,
provided that the Company acknowledges and agrees that Xxxxx shall be obligated
to perform such services only to the extent that Xxxxx determines in his
discretion that such services shall not interfere with the conduct of Craig's
then current business and personal affairs at the time of any such request. The
Company shall pay all reasonable out-of-pocket expenses incurred by Xxxxx in the
performance of such advisory and consulting services.
(c) TERMINATION FOR ANY OTHER REASON. If the Company ends the
Term for Cause, or, subject to the first paragraph of Section 7(b) above, if
Xxxxx resigns as an employee or officer of the Company, or if Xxxxx dies, then
the Company shall have no obligation to pay Xxxxx any amount, whether for
salary, benefits, bonuses, or other compensation or expense reimbursements of
any kind, accruing after the end of the Term, and such rights shall, except as
otherwise required by law, be forfeited immediately upon the end of the Term.
(d) OPTION MATTERS. If the Company ends the Term without Cause,
the Company and Xxxxx agree that notwithstanding any term or provision of any
agreement between Xxxxx and the Company to the contrary, (i) all options held by
Xxxxx to acquire shares of the common stock of the Company at the time of
termination shall immediately become vested, and shall be immediately
exercisable by Xxxxx or his personal representative, and (ii) Xxxxx (or his
personal representative, as the case may be) shall have the right to exercise
such vested options, and all other
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options previously vested in Xxxxx prior to the date of termination, for a
period of 365 days following such end of the Term. Xxxxx and the Company agree
that except as set forth above, all option agreements referred to above shall
remain in full force and effect in accordance with their terms.
8. CONFIDENTIALITY, OWNERSHIP, AND COVENANTS OF NON-COMPETITION AND
NON-SOLICITATION.
(a) "COMPANY INFORMATION" AND "INVENTIONS" DEFINED. "COMPANY
INFORMATION" means all information, knowledge or data of or pertaining to (i)
the Company, and (ii) any other person, firm, corporation or business
organization with which the Company may do business during the Term, that is not
in the public domain (and whether relating to methods, processes, techniques,
discoveries, pricing, marketing or any other matters). "INVENTIONS" collectively
refers to any and all inventions, trade secrets, ideas, processes, formulas,
source and object codes, data, programs, other works of authorship, know-how,
improvements, discoveries, developments, designs, and techniques regarding any
of the foregoing.
(b) CONFIDENTIALITY. Except as provided in the next two
sentences, Xxxxx covenants and agrees that all Company Information shall be kept
secret and confidential at all times during and after the end of the Term and
shall not be used or divulged by him outside the scope of his employment as
contemplated by this Agreement, except as the Company may otherwise expressly
authorize by action of the Board. In the event that Xxxxx is requested in a
judicial, administrative or governmental proceeding to disclose any of the
Company Information, Xxxxx will promptly so notify the Company so that the
Company may seek a protective order or other appropriate remedy and/or waive
compliance with this Agreement. If disclosure of any of the Company Information
is required, Xxxxx may furnish the material so required to be furnished, but
Xxxxx will furnish only that portion of the Company Information that legally is
required.
(c) OWNERSHIP. Xxxxx hereby assigns to the Company all of Craig's
right (including patent rights, copyrights, trade secret rights, and all other
rights throughout the world), title and interest in and to Inventions, whether
or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by Xxxxx, either alone or jointly
with others, during the course of the performance of services for the Company.
Xxxxx shall also assign to, or as directed by, the Company, all of Craig's
right, title and interest in and to any and all Inventions, the full title to
which is required to be in the United States government by a contract between
the Company and the United States government or any of its agencies. The
provisions of Sections 8(a), 8(b) and this Section 8(c) are not intended to
supersede or limit the effect of any prior confidentiality or proprietary rights
agreements previously executed by Xxxxx.
(d) PERIODS DEFINED. "NON-COMPETITION PERIOD" means the period
beginning on the day following the date of termination of Craig's employment
with the Company and ending on the first anniversary of the day following the
date of termination of Craig's employment with the Company. "NON-SOLICITATION
PERIOD" means the period beginning on the day following the date of termination
of Craig's employment with the Company and ending on the second anniversary of
the day following the date of termination of Craig's employment with the
Company.
(e) COVENANTS OF NON-COMPETITION AND NON-SOLICITATION. Xxxxx
acknowledges that his services pursuant to this Agreement are unique and
extraordinary, that the Company will be dependent upon Xxxxx for the development
and growth of its business and related functions, and that he will continue to
develop personal relationships with significant customers of the Company and to
have control of confidential information concerning, and lists of customers of,
the Company. Xxxxx further acknowledges that the business of the Company is
international in scope and cannot be confined to any particular geographic area
of the United States. For the foregoing reasons, Xxxxx covenants and agrees that
during the Non-Competition Period Xxxxx shall not, directly or indirectly,
engage in, be financially interested in, represent, render any advice or
services to, or be employed by, any other business (conducted for profit or not
for profit) that is engaged in the development or production of (i) high
temperature superconducting materials, (ii) radio frequency filter devices, or
(iii) fault current limiter devices, in any such case for or related to uses
which are or could reasonably deemed to be competitive with the current or
currently contemplated business of the Company in the world. For the reasons
acknowledged by Xxxxx at the beginning of this Section, Xxxxx additionally
acknowledges, covenants, and agrees that, during the Non-Solicitation Period,
Xxxxx shall not, directly or indirectly, whether on his own behalf or on
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behalf of any other person or entity, in any manner (A) solicit the business of
or otherwise contact in any commercial capacity any person or entity that is, or
is reasonably anticipated to become, at the date of termination to become, a
customer, supplier, or contractor of the Company for the purpose of obtaining
business of the type performed by the Company, or (B) solicit for employment any
persons who were officers or employees of the Company upon the date of
termination of his employment hereunder, or at any time during a ninety-day
period preceding such date, or aid any competitive business organization in any
attempt to hire any such officers or employees of the Company. Notwithstanding
the foregoing, this Section (e) shall terminate and be of no further force or
effect if the Company fails to make any payment or otherwise perform any
obligation owed to Xxxxx pursuant to Sections 3, 4, 5 and 7(b) above.
(f) EQUITABLE REMEDIES. Xxxxx acknowledges, covenants and agrees
that, in the event he shall violate any provisions of this Section 8, the
Company will not have an adequate remedy at law and will therefore be entitled
to enforce each such provision by temporary or permanent injunctive or mandatory
relief obtained in an action or proceeding without the necessity of posting any
bond of any kind whatsoever, and without prejudice to any other remedies that
may be available at law or in equity. The foregoing restrictions shall not
preclude Xxxxx from the ownership of not more than three percent (3%) of the
voting securities of any corporation whose voting securities are registered
under Section 12(g) of the Securities Exchange Act of 1934, even if its business
competes with that of the Company.
9. SUCCESSORS AND ASSIGNS.
(a) XXXXX. This Agreement is a personal contract, and the rights
and interests that the Agreement accords to Xxxxx may not be sold, transferred,
assigned, pledged, encumbered, or hypothecated by him. Except as contemplated in
Section 7(d) above, Xxxxx shall not have any power of anticipation, alienation
or assignment of the payments contemplated by this Agreement, all rights and
benefits of Xxxxx shall be for the sole personal benefit of Xxxxx, and no other
person shall acquire any right, title or interest under this Agreement by reason
of any sale, assignment, transfer, claim or judgment or bankruptcy proceedings
against Xxxxx. Except as so provided, this Agreement shall inure to the benefit
of and be binding upon Xxxxx and his personal representatives, distributees and
legatees.
(b) THE COMPANY. This Agreement shall be binding upon the Company
and inure to the benefit of the Company and of its successors and assigns,
including (but not limited to) any corporation that may acquire all or
substantially all of the Company's assets or business or into or with which the
Company may be consolidated or merged. This Agreement shall continue in full
force and effect in the event that the Company sells all or substantially all of
its assets, merges or consolidates, otherwise combines or affiliates with
another business, dissolves and liquidates, or otherwise sells or disposes of
substantially all of its assets. The Company's obligations under this Agreement
shall cease, however, if the successor to, the purchaser or acquiror either of
the Company or of all or substantially all of its assets, or the entity with
which the Company has affiliated, shall assume in writing the Company's
obligations under this Agreement (and deliver an executed copy of such
assumption to Xxxxx), in which case such successor or purchaser, but not the
Company, shall thereafter be the only party obligated to perform the obligations
that remain to be performed on the part of the Company under this Agreement.
10. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties concerning Craig's employment with the Company and
supersedes all prior negotiations, discussions, understandings and agreements,
whether written or oral, between Xxxxx and the Company relating to the subject
matter of this Agreement. All prior employment agreements, including the Prior
Agreement, between the Company and Xxxxx shall remain in full force and effect
with respect all matters addressed in such prior employment agreements occurring
on or before the effective date of this Agreement.
11. AMENDMENT OR MODIFICATION, WAIVER. No provision of this Agreement
may be amended or waived unless such amendment or waiver is agreed to in writing
signed by Xxxxx and by a duly authorized officer of the Company other that
Xxxxx. No waiver by any party to this Agreement of any breach by another party
of any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of a similar or dissimilar condition or provision
at the same time, any prior time or any subsequent time.
12. NOTICES. All notices, demands or other communications of any kind
to be given or delivered under
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this Agreement shall be in writing and shall be deemed to have been properly
given if (a) delivered by hand, (b) delivered by a nationally recognized
overnight courier service, (c) sent by registered or certified United States
Mail, return receipt requested and first class postage prepaid, or (d) facsimile
transmission followed by a confirmation copy delivered by a nationally
recognized overnight courier service. Such communications shall be sent to the
parties at their respective addresses as follows:
If to Xxxxx: Xxxxxx Xxxxx
Illinois Superconductor Corporation
000 Xxxxxxxx Xxxxx
Xx. Xxxxxxxx, XX 00000
If to the Company: Illinois Superconductor Corporation
000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Attention: Vice President of Human Resources
with a copy to: Xxxxxxxx X. Xxxxx
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Either party may change such address for delivery to the other party by delivery
of a notice in conformity with the provisions of this section specifying such
change. Notice shall be deemed to have been properly given (i) on the date of
delivery, if delivery is by hand, (ii) three (3) days after the date of mailing
if sent by certified or registered mail, (iii) one (1) day after date of
delivery to the overnight courier if sent by overnight courier, or (iv) the next
business day after the date of transmission by facsimile.
13. SEVERABILITY. If any provision of this Agreement or the
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid and
unenforceable to any extent, the remainder of this Agreement or the application
of such provision to such person or circumstances other than those to which it
is so determined to be invalid and unenforceable shall not be affected, and each
provision of this Agreement shall be validated and shall be enforced to the
fullest extent permitted by law. If for any reason any provision of this
Agreement containing restrictions is held to cover an area or to be for a length
of time that is unreasonable or in any other way is construed to be too broad or
to any extent invalid, such provision shall not be determined to be entirely
null, void and of no effect; instead, it is the intention and desire of both the
Company and Xxxxx that, to the extent that the provision is or would be valid or
enforceable under applicable law, any court of competent jurisdiction shall
construe and interpret or reform this Agreement to provide for a restriction
having the maximum enforceable area, time period and such other constraints or
conditions (although not greater than those contained currently contained in
this Agreement) as shall be valid and enforceable under the applicable law.
14. SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
15. HEADINGS. All descriptive headings of sections and paragraphs in
this Agreement are intended solely for convenience of reference, and no
provision of this Agreement is to be construed by reference to the heading of
any section or paragraph.
16. WITHHOLDING TAXES. All salary, benefits, reimbursements and any
other payments to Xxxxx under this Agreement shall be subject to all applicable
payroll and withholding taxes and deductions required by any law, rule or
regulation of and federal, state or local authority.
17. APPLICABLE LAW: JURISDICTION. The laws of the State of Illinois
shall govern the interpretation, validity and performance of the terms of this
Agreement, without reference to rules relating to conflicts of law. Any suit,
action or proceeding against Xxxxx with respect to this Agreement, or any
judgment entered by any court in respect thereof, may be brought in any court of
competent jurisdiction in the State of Illinois, as the Company may elect in its
sole discretion, and Xxxxx hereby submits to the nonexclusive jurisdiction
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of such courts for the purpose of any such suit, action, proceeding or judgment.
18. INTERPRETATION AND CONSTRUCTION. Each of the parties to this
Agreement has been represented by their own counsel, each has reviewed and
approved this Agreement as executed, and neither party shall be charged with the
responsibility of having drafted any provision of this Agreement so as to cause
any rule of strict construction to be applied against such party.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
ILLINOIS SUPERCONDUCTOR CORPORATION
By:
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XXXXXX X. XXXXX
President and Chief Executive Officer
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XXXXXX XXXXX
