EXHIBIT 10.31
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement ("Agreement") is made as of
August 1, 1997 by and between Airtron, Inc., (the "Company"), a Delaware
corporation and a subsidiary of Group Maintenance America Corp., a Texas
corporation ("GroupMAC"), and Xxxxx X. Xxxxxxxx, an individual resident of the
State of Ohio ("Employee").
1. Employment. The Company hereby agrees to employ the Employee and the
Employee hereby agrees to work for the Company upon the terms and conditions set
forth herein.
2. Term of Employment. This Agreement shall continue in effect for an
initial term ending April 30, 2000 and may continue for additional one year
periods upon the mutual written agreement of the Company and the Employee,
unless terminated in accordance with Section 6.
3. Scope of Duties; Representations and Warranties.
(a) The Employee will have such duties as are assigned or delegated to
the Employee by the Board of Directors of the Company and will initially serve
as the President of the Company. The Employee will devote his entire business
time, attention, skills, and energy exclusively to the business of the Company,
and will use his best efforts to promote the success of the Company's business,
and will cooperate fully with the Board of Directors in the advancement of the
best interests of the Company. If the Employee is elected as a director of the
Company or as a director or officer of any of its affiliates, the Employee will
fulfill his duties as such director or officer without additional compensation.
(b) The Employee represents and warrants that the execution and
delivery by the Employee of this Agreement do not, and the performance by the
Employee of the Employee's obligations hereunder will not, with or without the
giving of notice or the passage of time, or both: (i) violate any judgment,
writ, injunction, or order of any court, arbitrator, or governmental agency
applicable to the Employee or (ii) conflict with, result in the breach of any
provisions of or the termination of, or constitute a default under, any
agreement to which the Employee is a party or by which the Employee is or may be
bound.
4. Compensation.
(a) The Company shall initially pay the Employee an annual base salary
of $150,000, subject to adjustment as provided below, which will be payable in
equal periodic installments according to the Company's customary payroll
practices, but no less frequently than monthly. Employee's base salary will be
reviewed by the Board of Directors of the Company not less frequently than
annually, and may be adjusted upward or downward in the sole discretion of the
Board of Directors of the Company, but in no event will Employee's base salary
be less than $150,000 per year.
(b) All payments of salary and other compensation to the Employee
shall be made after deduction of any taxes and other amounts which are required
to be withheld with respect thereto under applicable federal and state laws.
5. Fringe Benefits; Expenses.
(a) So long as the Employee is employed by the Company, the Employee
shall participate in all employee benefit plans sponsored by the Company for its
executive employees; provided, however, that the nature, amount and limitations
of such plans shall be determined from time to time by the Board of Directors of
the Company.
(b) The Company will reimburse the Employee for all reasonable
business expenses incurred by the Employee in the scope of his employment;
provided, however, that the Employee must file expense reports with respect to
such expenses in accordance with the Company's policies as are in effect from
time to time.
(c) The Employee shall be entitled to a minimum of four (4) weeks paid
vacation in accordance with the vacation policies of the Company in effect from
time to time. The Employee will also be entitled to the paid holidays and other
paid leave set forth in the Company's policies.
6. Termination. Employee agrees that this Agreement may be terminated by
the Company with or without "Cause" at any time, subject to the terms of this
Section 6. Such termination shall be effective upon delivery of written notice
to Employee of the Company's election to terminate this Agreement under this
Section 6.
(a) Definition of "Cause". When used in connection with the
termination of employment with the Company, "Cause" shall mean: (i) Employee's
breach of his obligations under this Agreement after the Employee has been given
a reasonable opportunity to cure such breach; (ii) Employee's failure to adhere
to any written Company policy after the Employee has been given a reasonable
opportunity to comply with such policy or cure his failure to comply; (iii) the
conviction of, or the indictment for (or its procedural equivalent), or the
entering of a guilty plea or plea of no contest with respect to, a felony, the
equivalent thereof, or any other crime with respect to which imprisonment is a
possible punishment; (iv) the commission by the Employee of an act of fraud upon
the Company or any of its affiliates; (v) the misappropriation (or attempted
misappropriation) of any funds or property of the Company or any of its
affiliates by the Employee; (vi) the failure by the Employee to perform duties
assigned to him after reasonable notice and opportunity to cure such
performance; (vii) the engagement by the Employee in any direct, material
conflict of interest with the Company without compliance with the Company's
conflict of interest policy, if any, then in effect and which has been
communicated to the Employee; (viii) the engagement by the Employee, without the
written approval of the Board of Directors of the Company, in any activity which
competes with the business of the Company or any of its affiliates or which
would result in a material injury to the Company or any of its affiliates; (ix)
the engagement by the Employee in any activity which
would constitute a material violation of the provisions of the Company's or
Group MAC's Xxxxxxx Xxxxxxx Policy or Business Ethics Policy, if any, then in
effect and which has been communicated to the Employee, or (x) the failure by
the Employee to sign any lock-up letters, standstill agreements, or other
similar documentation required by an underwriter in connection with a public
offering of securities by the Company or Group MAC or to take other actions
reasonably related thereto as requested by the Board of Directors of the
Company; provided, however, that such letters, agreements or documentation shall
be no more restrictive than any such letters, agreements or documentation signed
by the management of the Company or Group MAC.
(b) Termination for Cause or Resignation. If the Company terminates
Employee's employment for Cause or the Employee voluntarily resigns, the Company
shall pay the Employee's base salary earned through the date of termination but
all rights to any other compensation or benefits arising hereunder, shall be
canceled and terminated in all respects concurrently with such termination of
employment; provided that Employee may elect to continue to participate, at
Employee's own expense, in such health insurance and other benefits as to which
the opportunity for continuing participation is mandated by applicable laws.
(c) Termination Without Cause. In the event that the Employee's
employment is terminated by the Company without Cause, the Company shall,
subject to the terms of subsections (d) and (e) of this Section 6 below, and
only if and as long as Employee is not in breach of his obligations under this
Agreement, (i) pay to the Employee an amount equal to six (6) months
compensation at his then current base salary payable in a lump sum and (ii)
continue to provide benefits in the kind and amounts provided up to the date of
termination for such six (6) month period, including, continuation of any
Company-paid benefits as described in Section 5 for the Employee and his family.
In the event that employment is terminated with Cause or the Employee
voluntarily resigns, the Employee shall not be entitled to receive any of the
foregoing compensation.
(d) Disability; Death. If at any time during the term of this
Agreement, Employee is unable due to physical or mental disability, to perform
effectively his duties hereunder, the Company shall continue payment of
compensation as provided in Section 4 during the first six (6) months of such
disability to the extent not covered by the Company's disability insurance
policies. Upon the expiration of such six (6) month period, the Company, at its
sole option, may continue payment of Employee's salary for such additional
periods as the Company elects, or may terminate this Agreement without further
obligations hereunder. If Employee should die during the term of this
Agreement, Employee's employment and the Company's obligations hereunder shall
terminate as of the end of the month in which Employee's death occurs and there
will be no salary and benefit continuation period.
(e) Securities Matters. Employee agrees that he will sign any lock-up
letters, standstill agreements, or other similar documentation required by an
underwriter in connection with a public offering of securities by the Company or
Group MAC, or take other actions reasonably related thereto as requested by the
Board of Directors of the Company. Failure to
take any such action shall be "Cause" for termination, or if termination has
already occurred, shall cause Employee to forfeit any further rights to the
salary continuation or other payments that would otherwise be payable to
Employee. In addition, Employee agrees that in such event the Company can seek
and obtain specific performance of such covenant, including any injunction
requiring execution of such documents and the taking of such actions, and the
Employee hereby appoints the then current president of the Company to sign any
such documents on his behalf so long as such documents are prepared on the same
basis as other management shareholders generally.
(f) Waiver and Release. In the event that employment is terminated by
the Company without Cause, Employee agrees to accept, in full settlement of any
and all claims, losses, damages and other demands which Employee may have
arising out of such termination as liquidated damages and not as a penalty, the
applicable amounts payable to Employee as set forth in this Section 6. Employee
hereby waives any and all rights he may have to bring any cause of action or
proceeding contesting any termination without Cause. Under no circumstances
shall Employee be entitled to any compensation or confirmation of any benefits
under this Agreement for any period of time following his date of termination if
his termination is for Cause.
7. Covenant Not to Compete.
(a) During the term of this Agreement, Employee will not compete with
the Company or its affiliates, directly or indirectly, either for himself or as
a member of a partnership or as a stockholder (except as a stockholder of less
than one percent (1%) of the issued and outstanding stock of a publicly-held
company whose gross assets exceed one hundred million dollars), investor, owner,
officer or director of a company or other entity, or as an employee, agent,
associate or consultant of any person, partnership, corporation or other entity,
in any business in competition with that carried on by the Company or its
affiliates.
(b) Employee further agrees that, for the period from the date hereof
to the later to occur of (i) April 30, 2002 or (ii) one (1) year from and after
the date of termination of Employee's employment under this Agreement,
regardless of the reason for such termination, he will, within a 50 mile radius
of Dayton, Ohio, neither represent any other company nor engage in or carry on
(directly or indirectly, either for himself or as a member of a partnership or
as a stockholder (other than as a stockholder of less than one percent (1%) of
the issued and outstanding stock of a publicly-held company whose gross assets
exceed one hundred million dollars), investor, owner, officer or director of a
company or other entity, or as an employee, agent, associate or consultant of
any person, partnership, corporation or other entity) any business which
directly competes with any of the services or products produced, sold,
conducted, developed, or in the process of development by the Company or its
affiliates on the date of termination of Employee's employment.
(c) Employee agrees that the limitations set forth herein on his
rights to compete with the Company and its affiliates are reasonable and
necessary for the protection of the Company and its affiliates. In this regard,
Employee specifically agrees that the limitations
as to period of time and geographic area, as well as all other restrictions on
his activities specified herein, are reasonable and necessary for the protection
of the Company and its affiliates. Employee agrees that, in the event that the
provisions of this Agreement should ever be deemed to exceed the scope of
business, time or geographic limitations permitted by applicable law, such
provisions shall be and are hereby reformed to the maximum scope of business,
time or geographic limitations permitted by applicable law.
(d) Employee agrees that the remedy at law for any breach by him of
this Section 7 will be inadequate and that the Company shall also be entitled to
injunctive relief.
8. Confidential Information and Results of Service. Employee agrees that
during the term of this Agreement, and for five (5) years after his termination
of employment, he will not make use of or disclose, without the prior consent of
the Company, Confidential Information (as hereinafter defined) relating to the
Company, or any of its affiliates, and further agrees, that he will return to
the Company at the termination of the Employee's employment or at any other time
at the Company's request all written materials in his possession embodying such
Confidential Information. For purposes of this Agreement, "Confidential
Information" includes information conveyed or assigned to the Company by
Employee or conceived, compiled, created, developed, discovered or obtained by
Employee from and during his employment relationship with the Company, whether
solely by the Employee or jointly with others, which concerns the affairs of the
Company or its affiliates and which the Company could reasonably be expected to
desire be held in confidence, or the disclosure of which would likely be
embarrassing, detrimental or disadvantageous to the Company or its affiliates
and without limiting the generality of the foregoing, such information includes
information relating to inventions, and the trade secrets, technologies,
algorithms, products, services, finances, business plans, marketing plans, legal
affairs, supplier lists, client lists, potential clients, business prospects,
business opportunities, personnel assignments, contracts and assets of the
Company and information made available to the Company by other parties under a
confidential relationship. Confidential Information, however, shall not include
information (i) which is, at the time in question, in the public domain through
no wrongful act of Employee, (ii) which is later disclosed to Employee by one
not under obligations of confidentiality to the Company or Employee, (iii) which
is required by court or governmental order, law or regulation to be disclosed,
or (iv) which the Company has expressly given Employee the right to disclose
pursuant to written agreement. Employee agrees that the remedy at law for any
breach by him of this Section 8 will be inadequate and that the Company shall
also be entitled to injunctive relief.
9. Employee Inventions. Each Employee Invention (as defined below) will
belong exclusively to the Company. The Employee acknowledges that all of the
Employee's writing, works of authorship, specially commissioned works, and other
Employee Inventions are works made for hire and the property of the Company,
including any copyrights, patents, or other intellectual property rights
pertaining thereto. If it is determined that any such works are not works made
for hire, the Employee hereby assigns to the Company all of the Employee's
right, title, and interest, including all rights of copyright, patent, and other
intellectual property rights, to or in such Employee Inventions. The Employee
covenants that he will promptly:
(a) disclose to the Company in writing any Employee Invention;
(b) assign to the Company or to a party designated by the Company, at
the Company's request and without additional compensation, all of the Employee's
right to the Employee Invention for the United States and all foreign
jurisdictions;
(c) execute and deliver to the Company such applications, assignments,
and other documents as the Company may request in order to apply for and obtain
patents or other registrations with respect to any Employee Invention in the
United States and any foreign jurisdictions;
(d) sign all other papers necessary to carry out the above
obligations; and
(e) give testimony and render any other assistance but without expense
to the Employee in support of the Company's rights to any Employee Invention.
For purposes of this Agreement, "Employee Invention" means any idea,
invention, technique, modification, process, or improvement (whether patentable
or not), any industrial design (whether registerable or not), any mask work,
however fixed or encoded, that is suitable to be fixed or programmed in a
semiconductor product (whether recordable or not), and any work of authorship
(whether or not copyright protection may be obtained for it) created, conceived,
developed, purchased or acquired by Employee, either solely or in conjunction
with others, during the term of Employee's employment with the Company that
relates in any way to, or is useful in any manner in, the business then being
conducted or proposed to be conducted by the Company, and any such item created
by the Employee, either solely or in conjunction with others, following
termination of the Employee's employment with the Company, that is based upon or
uses Confidential Information.
10. Notice. All notices, requests, demands and other communications
required by or permitted under this Agreement shall be in writing and shall be
sufficiently given if delivered by hand, by courier service, sent by registered
mail, postage prepaid, or sent by facsimile (with written confirmation of
receipt) to the parties at their respective addresses listed below:
(a) If to the Employee:
Xxxxx X. Xxxxxxxx
c/o Airtron, Inc.
0000 X. Xxxxx Xxxxx
Xxxxxx, Xxxx 00000
(b) If to the Company:
Airtron, Inc.
c/o Group Maintenance America Corp.
0000 Xxxx Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile No. (000) 000-0000
Attn: President
Either party may change such party's address by such notice to the other
parties.
11. Assignment. This Agreement is personal to the Employee, and he shall
not assign any of his rights or delegate any of his duties hereunder without the
prior written consent of the Company. Neither the Employee nor his spouse will
have the right to pledge, encumber, or otherwise dispose of any payments under
this Agreement. The Company shall have the right to assign this Agreement to a
successor in interest in connection with a merger, sale of substantially all
assets, or the like; provided however, that an assignment of this Agreement to
an entity with operations, products or services outside of the industries in
which the Company or its affiliates is then active shall not be deemed to expand
the scope of Employee's covenant not to compete with such operations, products
or services without Employee's written consent.
12. Survival. The provisions of this Agreement shall survive the
termination of the Employee's employment hereunder in accordance with their
terms.
13. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of Texas.
14. Binding Upon Successors. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective heirs,
legal representatives, successors and permitted assigns.
15. Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Employee with respect to the terms of employment of
the Employee by the Company and supersedes all prior agreements and
understandings, whether written or oral, between them concerning such terms of
employment.
16. Waiver and Amendments; Cumulative Rights and Remedies.
(a) This Agreement may be amended, modified or supplemented, and any
obligation hereunder may be waived, only by a written instrument executed by the
parties hereto. The waiver by either party of a breach of any provision of this
Agreement shall not operate as a waiver of any subsequent breach.
(b) No failure on the part of any party to exercise, and no delay in
exercising, any right or remedy hereunder shall operate as a waiver hereof, nor
shall any single or partial exercise of any such right or remedy by such party
preclude any other or further exercise thereof or the exercise of any other
right or remedy. All rights and remedies hereunder are cumulative and are in
addition to all other rights and remedies provided by law, agreement or
otherwise.
(c) The Employee's obligations to the Company and the Company's rights
and remedies hereunder are in addition to all other obligations of the Employee
and rights and remedies of the Company created pursuant to any other agreement.
17. Construction. Each party to this Agreement has had the opportunity to
review this Agreement with legal counsel. This Agreement shall not be construed
or interpreted against any party on the basis that such party drafted or
authored a particular provision, parts of or the entirety of this Agreement.
18. Severability. In the event that any provision or provisions of this
Agreement is held to be invalid, illegal or unenforceable by any court of law or
otherwise, the remaining provisions of this Agreement shall nevertheless
continue to be valid, legal and enforceable as though the invalid or
unenforceable parts had not been included therein. In addition, in such event
the parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible with respect
to those provisions which were held to be invalid, illegal or unenforceable.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement effective as of the date first above written.
COMPANY:
AIRTRON, INC., a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxx
