EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), dated February 28, 2001, is
entered into by and between Xxxxxxxx X. Xxxxxx, a Minnesota resident (the
"Executive") and Realco, Inc., a New Mexico corporation (the "Company").
R E C I T A L S
A. This Agreement is being executed and delivered contemporaneously
with that certain Agreement and Plan of Merger, dated February 28, 2001 (the
"Merger Agreement") among the Company, Equity Securities Investments, Inc.
("Equity") and ESI Acquisition Sub, Inc., a wholly owned subsidiary of the
Company ("Acquisition Sub"). Pursuant to the Merger Agreement, Acquisition Sub
will be merged into Equity, and Equity shall be the surviving corporation (the
"Merger"). As of the Effective Time (as defined in the Merger Agreement) of the
Merger, Equity shall be a wholly-owned subsidiary of the Company.
B. The Company wishes to procure the services of the Executive for the
Company following the Merger, and the Executive is willing to provide his
services to the Company on the terms and conditions hereinafter set forth.
C. The Company further wishes to restrict the Executive's business
activities and protect the confidential information and trade secrets of the
Company and its affiliated entities during the term of and upon expiration of
this Agreement.
NOW THEREFORE, in consideration of the premises recited above and the
mutual promises and agreements herein, the parties to this Agreement hereby
agree as follows:
1. Employment.
1.01. Employment; Title. The Company hereby employs the
Executive as an executive officer and the Executive hereby accepts such
employment on the terms and conditions set forth in this Agreement. The
Executive shall have such authority and responsibility, and shall serve in such
capacities consistent with that status, as may from time to time be assigned to
him by the Board of Directors of the Company. The Executive shall render such
other services and perform such other duties as may be requested of him from
time to time by the Board.
1.02. Performance of Duties. The Executive shall serve the
Company and its subsidiaries faithfully and to the best of his ability, and
devote such time as may reasonably be required to the business and affairs of
the Company and its subsidiaries during normal business hours (and outside
normal business hours as reasonably required) during the term of this Agreement.
1.03. No Other Agreements. The Executive hereby confirms that
he is under no contractual commitments inconsistent with his obligations set
forth in this Agreement.
2. Term.
2.01. Term. The term of this Agreement shall begin on the
Closing Date (as such term is defined in the Merger Agreement) and expire on the
date that is three (3) years after the Closing Date, unless terminated earlier
in accordance with Section 5.01 hereof or extended as provided in Section 2.02
(the "Term"). Except as otherwise specified herein, all rights, duties and
obligations of the Executive, including without limitation the compensation and
benefits provided in Section 4 of this Agreement, shall commence as of the
Closing Date. In the event the Merger Agreement is terminated and the Merger is
not consummated, this Agreement shall not become effective and shall be deemed
for all purposes null and void.
2.02. Extension. On the first anniversary of the Closing Date
and on each subsequent anniversary thereof (each, a "Renewal Date"), the
then-existing Term shall be automatically extended so that it shall expire on
the date that is three (3) years after such Renewal Date, unless on or before
such Renewal Date the Company shall have delivered to the Executive or the
Executive shall have delivered to the Company written notice that the Term will
not be so extended. If such notice is given, the Term will end at the expiration
of the then-existing Term (including any previous extension(s)), and shall not
be further extended except by agreement of the Company and the Executive.
3. Location. The Executive shall be based in, and shall perform his
duties in, the Minneapolis, Minnesota metropolitan area, or at such other
location as may be mutually agreed upon by the Company and the Executive. The
Executive shall, however, travel to other locations as may be reasonably
required for the performance of his duties under this Agreement.
4. Compensation and Benefits.
4.01. Base Salary. During the Term of this Agreement, the
Company shall pay to the Executive a base salary at the rate of not less than
$150,000 per annum. Such base salary shall be paid in equal installments on the
Company's regular payroll dates during the term of this Agreement. The
Executive's base salary shall be reviewed annually and may be increased (but not
decreased).
4.02. Stock Option. Executive shall be eligible to participate
in any stock option plan or similar incentive plan of the Company subject to the
terms and conditions contained therein.
4.03. Bonuses and Incentive Compensation. In addition to the
base salary and the stock options described in Sections 4.01 and 4.02, the
Executive shall be eligible to participate in any bonus or performance based
incentive compensation plans which are established by the Board of Directors of
the Company for its executives.
4.04 Vacation. The Executive shall be entitled to paid
vacation time of not less than four (4) weeks annually.
4.05. 401(k) Plan. The Executive shall be entitled to
participate in any 401(k) plan offered by the Company from time to time to the
extent he is eligible to participate under
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the terms of such plan. The Executive's participation in such plan shall be
subject to the provisions, rules and regulations applicable thereto.
4.06. Participation in Other Benefit Plans. The Executive
shall be entitled to participate in all employee benefit plans or programs
established by the Company's Board of Directors from time to time to the extent
that his position, title, tenure, salary, age, health and other qualifications
make him eligible to participate. The Executive's participation in any such plan
or program shall be subject to the provisions, rules and regulations applicable
thereto. Without limiting the generality of the foregoing, the Executive shall
be provided with medical, disability, and life insurance coverage to the extent
it is available at a reasonable cost from reputable insurers.
4.07. Expenses. The Company shall pay or reimburse the
Executive for all reasonable and necessary out-of-pocket expenses incurred by
him in the performance of his duties under this Agreement, subject to the
presentment of appropriate vouchers in accordance with the Company's normal
policies for expense verification.
5. Termination.
5.01. Termination. The Executive's employment under this
Agreement may be terminated prior to the expiration of the Term set forth in
Section 2 or any extension thereof, as follows, in which case the Company will
be obligated to compensate the Executive as provided in Section 5.02:
(a) Termination upon Death. The Executive's
employment under this Agreement shall terminate upon his
death.
(b) Termination upon Disability. The Company may
terminate the Executive's employment in the event the
Executive is determined to be disabled, as defined in Section
5.03.
(c) Termination by the Company without Cause. The
Company may terminate the Executive's employment under this
Agreement for any reason or for no reason upon ninety (90)
days' written notice to the Executive.
(d) Termination by the Company for Cause. The Company
may terminate the Executive's employment under this Agreement
for Cause, as defined in Section 5.03, effective immediately
upon delivery to the Executive of written notice of such
termination; provided, however, that the Executive shall not
be terminated for Cause unless and until the Company shall
have delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of not less than a majority of
the entire membership of the Company's Board of Directors
(excluding the Executive, if the Executive is a member of the
Board of Directors) at a meeting called and held for such
purpose (after reasonable notice to the Executive and an
opportunity for the Executive, together with the Executive's
counsel, to be heard by said Board), finding that, in the good
faith opinion of said Board, the Executive's conduct
constitutes Cause for termination and specifying the
particulars thereof in detail.
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(e) Termination by the Executive. The Executive may
terminate his employment with the Company hereunder at any
time (i) for Good Reason, as defined in Section 5.03,
effective immediately upon delivery to the Company of written
notice of such termination, or (ii) for any reason or for no
reason upon ninety (90) days' written notice to the Company.
(f) Termination by Mutual Consent. The parties may
terminate the Executive's employment under this Agreement at
any time by mutual consent.
5.02. Compensation Upon Termination.
(a) Death or Disability. In the event this Agreement
is terminated by reason of the Executive's death or
disability, the Executive shall be entitled to payment of
salary earned through the date of termination; payment of any
bonus or other incentive compensation for the year in which
such death or disability occurs, pro rated for the portion of
the year preceding the date of termination; payment for
accrued vacations to the date of termination; and
reimbursement of expenses incurred through the date of
termination. The Executive shall not be entitled to receive
any salary, bonus or other payments or benefits under this
Agreement with respect to any periods after the date of
termination by reason of death or disability.
(b) Termination by Company without Cause or by
Executive for Good Reason. If the Executive's employment under
this Agreement is terminated by the Company without Cause
pursuant to Section 5.01(c) or by the Executive for Good
Reason pursuant to Section 5.01(e)(i), the Executive shall be
entitled to payment of salary earned through the date of
termination; payment of any bonus or other incentive
compensation for the year in which such termination occurs,
pro rated for the portion of the year preceding the date of
termination; payment for accrued vacations to the date of
termination; and reimbursement of expenses incurred through
the date of termination. In addition, the Executive shall be
entitled to continue to receive, as a severance benefit,
payment of his base salary (at the highest annual rate in
effect during the Term of this Agreement) for the remainder of
the Term of this Agreement and continuation of medical
insurance coverage for the Executive and his family at the
Company's expense for the remainder of the Term of this
Agreement.
(c) Termination by Company for Cause or by Executive
without Good Reason. If the Executive's employment under this
Agreement is terminated by the Company for Cause pursuant to
Section 5.01(d), or by the Executive without Good Reason
pursuant to Section 5.01(e)(ii), the Executive shall be
entitled to payment of salary earned through the date of
termination; payment of any bonus or other incentive
compensation for the year in which such termination occurs,
pro rated for the portion of the year preceding the date of
termination; payment for accrued vacations to the date of
termination; and reimbursement of expenses incurred through
the date of termination. The Executive shall not be entitled
to receive any salary, bonus or other payments or benefits
under this Agreement with respect to any periods after the
date of termination by the Company for Cause or by the
Executive without Good Reason.
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5.03. Definitions.
(a) Disability. The Executive shall be deemed to be
"disabled" if the Board of Directors of the Company (excluding
the Executive, if the Executive is a member of the Board of
Directors) determines in good faith that the Executive is
physically or mentally incapacitated and has been unable for
ninety (90) days in any 360-day period to perform his duties
under this Agreement. In order to assist the Board of
Directors in making that determination, the Executive shall,
as reasonably requested by the Board, (i) make himself
available for medical examinations by a physician chosen by
the Board, and (ii) grant the Board and such physician access
to all relevant medical information concerning him, arrange to
furnish copies of medical records to them and use his best
efforts to cause his own physicians to be available to discuss
his health with the Board and the physician appointed by the
Board. If the Executive disagrees with the findings of the
Board-appointed physician, he may appoint his own physician to
make the relevant determinations as to disability. In the
event that the physician appointed by the Executive disagrees
with the findings of the Board-appointed physician, the two
physicians shall select a third physician whose determination
shall be binding.
(b) Cause. "Cause" shall mean:
(i) the willful and continued failure by the
Executive to perform substantially the duties and
responsibilities of the Executive's position with the
Company, which failure is not remedied within thirty
(30) days after a written demand for substantial
performance, signed by a majority of the Company's
Board of Directors, is delivered to the Executive,
which demand specifically identifies the manner in
which the directors believe that the Executive has
not substantially performed his duties or
responsibilities (except that (A) any such failure
resulting from the Executive's incapacity due to
physical or mental illness or death, (B) any such
actual or anticipated failure after the issuance of a
notice of termination by the Executive for Good
Reason, or (C) any such failure resulting from the
Company's active or passive obstruction of the
performance of the Executive's duties and
responsibilities shall not constitute "Cause");
(ii) the conviction of the Executive by a
court of competent jurisdiction for felony criminal
conduct; or
(iii) the willful engaging by the Executive
in fraud or dishonesty which is demonstrably and
materially injurious to the Company or its
reputation, monetarily or otherwise.
No act, or failure to act, on the Executive's part shall be deemed
"willful" unless committed or omitted by the Executive in bad faith and
without a reasonable belief that his act or failure to act was in the
best interest of the Company.
(c) Good Reason. "Good Reason" shall mean the
occurrence, without the Executive's express written consent,
any of the following:
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(i) the assignment to the Executive of any
duties inconsistent with the Executive's status or
position with the Company, or a substantial
alteration or diminution in the nature or status of
the Executive's responsibilities from those performed
by the Executive for Equity prior to the Merger;
(ii) a reduction by the Company in the
Executive's annual base salary;
(iii) the Company requiring the Executive to
be based anywhere other than the Minneapolis,
Minnesota metropolitan area except for required
travel on the Company's business to the extent
reasonably consistent with the Company's strategic
business plan, and to the extent required in
connection with the Executive's management reporting,
planning and training responsibilities to the
Company;
(iv) the taking of any action by the Company
which would directly or indirectly materially reduce
any of the other benefits described in Sections 4.03
through 4.06 and which remains uncured after thirty
(30) days following the delivery of the Executive's
written notice of such breach to the Company; or
(v) any material violation of this Agreement
by the Company which remains uncured after thirty
(30) days following the delivery of the Executive's
written notice of such breach to the Company.
6. Miscellaneous
6.01. Assignment. Neither party may transfer or assign any
rights or delegate any obligations hereunder, in whole or in part, whether
voluntarily or by operation of law, without the prior written consent of the
other party. Any purported transfer, assignment or delegation by either party
without compliance with this Section 6.01 will be null and void and of no force
or effect. This Agreement shall be binding upon and inure to the benefit of the
parties' successors and lawful assigns.
6.02. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or unenforceable or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
6.03. Withholding. The Company may withhold and deduct from
any benefits payable under this Agreement such amounts as are required under
federal, state and local law to be withheld for income tax, Social Security or
other employment tax withholding purposes.
6.04. Complete Agreement. This Agreement and the agreements
referenced herein and therein, contain the complete agreement between the
parties with respect to the subject matter hereof and thereof, and supersede any
prior understandings, agreements or
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representations by or between the parties, written or oral, which may have
related to the subject matter hereof or thereof in any way.
6.05. Counterparts. This Agreement may be executed in one or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together, when delivered, will
constitute one and the same instrument.
6.06. Governing Law; Choice of Forum. The internal law,
without regard to conflicts of laws principles, of the State of Minnesota will
govern all questions concerning the construction, validity and interpretation of
this Agreement and the performance of the obligations imposed by this Agreement.
Any and every legal proceeding arising out of or in connection with this
Agreement shall be brought in the appropriate courts of the State of Minnesota,
and each of the parties hereto consents to the exclusive jurisdiction of such
courts.
6.07. No Waiver. No term or condition of this Agreement shall
be deemed to have been waived, nor shall there by any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
* * * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
EXECUTIVE:
/s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
COMPANY:
REALCO, INC., a New Mexico corporation
By: /s/ Xxxxx X. Xxxxx
Its: President
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