EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of the
26th day of September, 2005, by and among Xxxxx Industries Incorporated, a
Delaware corporation (the "Company") and Xxxxx X. Xxxxxx, a resident of the
State of New York ("Executive"). The Company is sometimes referred to herein as
the "Employer".
WHEREAS, the Employer wishes to employ Executive on the terms and
conditions set forth in this Agreement, and Executive wishes to be retained and
employed by the Employer on such terms and conditions.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the Employer and Executive set forth below, the Employer and
Executive hereby agree as follows:
1. Employment. The Employer hereby employs Executive, and Executive hereby
accepts such employment and agrees to perform services for the Employer, for the
period and on the other terms and subject to the conditions set forth in this
Agreement.
2. Term. Unless terminated at an earlier date in accordance with the
provisions of Section 6 of this Agreement, the initial term of Executive's
employment hereunder shall be a period of five (5) years commencing on the
effective date (the "Effective Date") of the Company's acquisition of the shares
of Air Industries Machining, Corp. (the "Initial Term"). This Agreement shall be
automatically extended for successive three (3) one year periods (each, a
"Renewal Term", and together with the Initial Term, the "Term") unless (i) any
party objects to such extension by no less than ninety (90) days' prior written
notice to the other parties at any time prior to the expiration of the Initial
Term or a Renewal Term, as the case may be, or (ii) this Agreement is terminated
at an earlier date in accordance with the provisions of Section 6.
3. Position and Duties.
3.01 Service with the Employer. The Employer hereby employs
Executive in an executive capacity during the Term initially with the title of
Vice Chairman of the Board of Directors, Vice Chairman of the Management
Committee and Chief Financial Officer and Treasurer of the Company, and
Executive hereby accepts such employment and undertakes and agrees to serve in
such capacities during the Term. In addition, the Company agrees to cause
Executive to be elected as a member of the Board of Directors and Management
Committee of the Company. In such capacities, Executive shall have such powers,
perform such duties and fulfill such responsibilities typically associated with
such positions in other publicly held companies.
3.02 Performance of Duties. Executive agrees to serve Employer to
the best of his ability and to devote his full time, attention and efforts to
the business and affairs of the Employer during the Term. Notwithstanding the
foregoing, Executive shall not be precluded from accepting service as a director
of other businesses or community organizations or from the management of his
investments, provided, however, that any such business shall not be competitive
with the Company and such service shall not detract from Executive's performance
or time commitment hereunder. Executive shall report directly to the Executive
Chairman and the Board of Directors of the Company.
3.03 Key-man Life Insurance. Should the Company determine to obtain
key-man life insurance payable to the Company in the event of the death of
Executive, Executive agrees to cooperate with such effort.
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4. Compensation.
4.01 Base Salary. As base compensation for all services to be
rendered by Executive under this Agreement, the Company shall pay to Executive
an annual base salary, which annual base salary shall be $230,000 per year for
the initial twelve-month period of the Term (as adjusted pursuant to this
Section 4.01, the "Base Salary"), which Base Salary shall be paid on a weekly
basis in accordance with the Company's normal payroll procedures and policies,
subject to applicable deductions as required by law. The amount of the
Executive's Base Salary (a) shall be reviewed annually by the Board of Directors
of the Company, (b) shall be increased annually from the amount of the Base
Salary paid to Executive during the prior twelve-month period (each, a "Prior
Period") of the Term on the basis, inter alia, of the profitability and
performance of the Company, on a consolidated basis, during such Prior Period,
which increase shall in no event be less than ten percent (10%) of the amount of
the Base Salary paid to Executive during such Prior Period, provided that
Operating Profits during such Prior Period are at least five percent (5%)
greater than the Operating Profits during the twelve-month period prior to such
Prior Period and (c) shall under no circumstance be reduced from the amount of
the Base Salary paid to Executive during the applicable Prior Period. "Operating
Profits" means the consolidated net income during the applicable period, as
reported on the Company's consolidated financial statements, plus current
interest expense, noncash expenses related to any employee stock ownership plan
established by the Company, provisions for taxes based on income, any
extraordinary losses for such period, minus any extraordinary gains for such
period, but without adjustment for any noncash income or noncash charges which
are classified as such under generally accepted accounting principles in the
United States (other than noncash expenses related to any employee stock
ownership plan established by the Company).
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4.02 Annual Bonus. In addition to Base Salary, the Company shall pay
to Executive an annual bonus. The amount of the annual bonus to be paid to
Executive with respect to any twelve-month period during the Term shall be
determined at the discretion of the Board of Directors of the Company, provided,
however, that the amount of such annual bonus shall be reasonably predicated on
Executive's performance and the achievement by the Company of its operating
targets as set forth in the applicable budget adopted by the Board of Directors
of the Company in consultation with Executive; provided, further, in no event
shall the amount of the such annual bonus be less than fifty percent (50%) of
Base Salary paid to Executive during the twelve-month period in which the annual
bonus is paid. In addition, Executive shall participate in all other bonus
programs that Employer may adopt from time to time in which senior employees are
entitled to participate.
4.03 Participation in Benefit Plans. The Company will either pay, or
reimburse Executive, for the amount of the premiums due for a long-term
disability policy providing benefits of no less than one-half of Executive's
salary until age 70 with respect to Executive and a life insurance policy on the
life of Executive. Such life insurance policy will pay Executive's designated
beneficiary or beneficiaries no less than three times the amount of the Base
Salary that was being paid to Executive at the time of his death. In addition,
Executive shall also be entitled to participate in all employee benefit plans or
programs offered to senior employees of Employer (to the extent that Executive
meets the requirements for each such plan or program), including without
limitation participation in any health, disability, dental, eye care, 401(k),
deferred compensation and other similar plans (together with the life insurance
and disability policies, "Benefits"), as such plans and programs may be or have
been adopted from time to time.
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(b) Employer intends to implement a plan relating to future
acquisitions of other businesses, pursuant to which a portion of a corporate
overhead charge implemented in connection with each acquisition will be
allocated in good faith by the Company's Board of Directors to compensation for
executive-level employees of the Company. Upon adoption of such plan, it shall
provide that Executive will be entitled to no less than 25% of the portion of
the corporate overhead charged allocated to executive-level compensation with
respect to each such acquisition consummated at any time during the period from
the date of adoption of such plan until the date on which the Employer's
obligations to pay Benefits has terminated pursuant to Section 6.02.
4.04 Automobile and Other Expenses. The Company will pay to
Executive no less than $700 per month (adjusted annually for inflation, as
determined by the Company's Board of Directors) during the Term as reimbursement
for business-related operating expenses for an automobile to be used by
Executive, including without limitation automobile lease payments, insurance,
service and repairs in the ordinary course. In addition, the Company shall pay
or reimburse Executive for all reasonable out-of-pocket expenses incurred by him
in the performance of his duties under this Agreement, subject to the
presentment and approval of appropriate itemized expense statements, receipts,
vouchers or other supporting documentation in accordance with the Company's
normal policies.
4.05 Vacation. Executive shall be entitled to no less paid vacation
than other senior employees of the Company receive pursuant to the Company's
standard vacation policies, provided, however, that Executive shall be entitled
to no less than five (5) weeks of paid vacation during each twelve (12) month
period during the Term.
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4.06 Stock Options and Other Incentive Compensation. To further the
attainment of the Company's long-term profit and growth objectives, the Company
hereby grants Executive, contemporaneously with the execution of this Agreement,
options to purchase such number of shares of common stock of the Company as will
convert into 1,200,000 shares of common stock (the "Common Stock") of the public
entity with which the Company merges upon acquisition of Air Industries
Machining, Corp. The exercise price of 240,000 of such options shall be
twenty-two cents and the exercise price of the remaining options shall be
determined in accordance with the provisions of the Option Agreement being
delivered simultaneously herewith. In addition, Executive shall be entitled to
participate in all other stock option, revenue sharing, profit sharing,
long-term accumulation and/or stock based plans or programs that the Company may
adopt from time to time. For purposes of any Common Stock options or other
similar programs to be granted hereunder, such Common Stock and rights shall be
defined to include the Common Stock of any successor corporation or other entity
into which the Company is merged, or which acquires substantially all the assets
of the Company.
5. Additional Covenants.
5.01 Acknowledgments and Stipulations. Executive acknowledges that
he is agreeing to the covenants set forth in this Section 5 (a) in consideration
of the substantial economic benefits derived by Executive under the terms of
this Agreement, (b) in recognition that the services rendered by Executive to
Employer will be unique, as are Executive's abilities, skills and experience,
(c) in recognition that, as a result of his employment, Executive will acquire
and participate in the creation of knowledge and information of a confidential
and/or proprietary nature relating to the business of the Company and its
affiliates, which is valuable to the Company because the Company will expend
substantial time, effort and money to develop such knowledge and information,
(d) to induce Employer to employ Executive and disclose certain of such
information to Executive, and (e) to induce Employer to enter into this
Agreement.
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5.02 Nonsolicitation of Customers and Executives. At all times
during the term of Executive's employment with the Employer and for a period of
twelve (12) months following the termination of such employment pursuant to
Section 6.01(a) or Section 6.01(f) hereto, (a) Executive shall not, directly or
indirectly, for himself or on behalf of or in conjunction with any other person,
solicit or attempt to solicit the business or patronage of, or interfere with
the business relationship of the Employer with any customer of the Employer, and
(b) Executive shall not directly or indirectly cause any other person to employ,
solicit, disturb, entice away, or in any other manner persuade any employee of
the Employer or its affiliates to discontinue or alter his or her relationship
with the Employer.
5.03 Noncompetition. At all times during the term of Executive's
employment with the Employer and for a period of twelve (12) months following
the termination of such employment for any reason other than a termination of
this Agreement by the Company without cause, Executive whether individually, as
a director, manager, member, stockholder, partner, owner, employee, consultant
or agent of any business, or in any other capacity, shall not engage, directly
or indirectly through any other person, in any business, enterprise or
employment which competes with the business of the Employer. Executive
acknowledges and agrees that the business of the Employer is of a worldwide
nature and that any geographic limitation on the foregoing covenant would be
ineffective to adequately protect the interests of the Employer. Executive
further acknowledges and agrees that the foregoing covenant is an integral part
of his agreement to be employed hereunder, is fair and reasonable in light of
all of the facts and circumstances of the relationship between Executive and the
Employer. In the event any court of competent jurisdiction determines that,
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notwithstanding the foregoing acknowledgments, the scope of the restricted
activities of the foregoing covenant is excessive or not enforceable, or that
the foregoing covenant is not enforceable unless it is subject to a geographic
limitation, this Agreement shall be deemed amended to reflect the maximum
restrictions on activities and geographic scope allowable pursuant to such
court's determination. Nothing contained in this Section 5.03 shall be construed
as limiting the scope of this Section 5.
5.04 Limitation on Covenant not to Compete. Ownership by Executive,
as a passive investment, of less than two percent (2.00%) of the outstanding
shares of capital stock of any corporation, with a cost basis to Executive of
less than $250,000, listed on a national securities exchange or publicly traded
in the over-the-counter market shall not constitute a breach of this Section 5.
5.05 Confidential Information. Executive agrees that during and
after the period of his employment, he will not, without the authorization of
the Company, divulge, disclose or otherwise communicate to any person, other
than as necessary or desirable for the business of the Employer pursuant to his
responsibilities to the Employer during the Term, any information of a
confidential nature pertaining in any way to the Employer's business, products,
practices, techniques, customers, suppliers, functions or operations (the
"Confidential Information"), except to the extent that such Confidential
Information (a) was disclosed to Executive by a third party who did not obtain
the same directly or indirectly from the Company or one of its affiliates, (b)
was known by Executive prior to disclosure by the Employer, (c) at or after the
time of disclosure, is or becomes generally available to the public (other than
as a result of its disclosure by Executive), (d) is required to be disclosed by
Executive pursuant to applicable law or an order of a governing authority
applicable to Executive.
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6. Termination.
6.01 Grounds for Termination. This Agreement shall terminate prior
to the expiration of the Initial Term or any Renewal Term upon the occurrence of
any of the following events at any time during such Initial Term or Renewal
Term:
(a) The effective date of Executive's voluntary resignation,
for which Executive agrees to give at least 30 days' prior written notice to the
Company;
(b) Executive's death;
(c) Executive's Disability (as hereinafter defined);
(d) Executive elects to terminate his employment 30 or more
days after Executive gives the Company written notice of his intent to terminate
his employment ("Notice of Good Reason") for any of the following reasons (each,
a "Good Reason"), provided that the Company has not eliminated the circumstances
constituting Good Reason prior to the effective date of such resignation: (1) a
material adverse alteration in the nature or status of Executive's title, duties
or responsibilities; (2) a material adverse reduction in Executive's Base Salary
and Benefits (excluding contingent salary and bonuses); (3) a requirement that
Executive be based at a work location more than 50 miles from the current site
of Employer (unless such new work location is closer to Executive's residence
than the current site is); (4) the failure by the Company to pay to Executive
any portion of Executive's compensation then due and payable; or (5) any failure
by Employer to comply with the material provisions of this Agreement. The Notice
of Good Reason shall indicate the specific provision above that Executive is
relying upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for Good Reason under the provision so
indicated;
(e) Executive's termination by Employer without Cause (as
hereinafter defined);
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(f) Executive's termination by Employer for Cause. For the
purposes of this Agreement, "Cause" means, as determined by the Board (or its
designee), with respect to conduct during the Executive's employment or service
relationship with the Company or its affiliates, whether or not committed during
the Term, (i) commission of a felony by Executive; (ii) acts of dishonesty by
Executive resulting or intending to result in personal gain or enrichment at the
expense of the Company or its subsidiaries; (iii) conduct by Executive in
connection with his duties hereunder that is fraudulent, unlawful or grossly
negligent, including, but not limited to, acts of discrimination (provided
reasonable grounds of such harassment or discrimination are established); (iv)
engaging in personal conduct by Executive (including but not limited to employee
harassment or discrimination (provided reasonable grounds of such harassment or
discrimination are established), the use or possession at work of any illegal
controlled substance) which seriously discredits or damages the Company or its
subsidiaries; and (v) breach of the Executive's covenants set forth in Section 5
before termination of employment; provided, that, the Executive shall have
fifteen (15) days after notice from the Company to cure the deficiency leading
to the Cause determination (except with respect to (i) above), if curable. A
termination for "Cause" shall be effective immediately or on such later date set
forth by the Company in the notice of termination.
6.02 Severance. If Executive's employment is terminated:
(a) as a result of Sections 6.01(b) and (f), then the Company shall
pay to Executive his full Base Salary, bonuses for the calendar year (or
employment period) prior to the year (or employment period) in which such
termination occurs and Benefits prorated through the effective date of such
termination, and Executive shall be reimbursed for any expenses incurred by him
pursuant to Section 4.04 through the termination date; or
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(b) as a result of Section 6.01(c), 6.01(d) or 6.01(e), then the
Company shall pay to Executive or Executive's estate (1) his full Base Salary,
bonuses for the calendar year (or employment period) prior to the year (or
employment period) in which such termination occurs, pro-rated bonuses for the
current year (or period) and Benefits prorated through the effective date of
such termination and (2) additional Base Salary, payable in monthly
installments, plus additional Benefits, for the period from the effective date
of such termination until the later of (i) one year after the effective date of
such termination and (ii) the date on which the then-current Initial Term or
Renewal Term, as the case may be, would have expired (provided, however, if
participation by Executive in any Benefit plan or program after the termination
of his employment is not permitted under such plan or program, then the Company
will provide him with the equivalent benefits); Executive shall be reimbursed
for any expenses incurred by him pursuant to Section 4.04 through the effective
date of such termination; Executive shall be paid $700 per month (or a prorated
portion thereof) for the automobile to be used by Executive from the effective
date of such termination until the later of (i) one year after the effective
date of such termination and (ii) the date on which the then-current Initial
Term or Renewal Term, as the case may be, would have expired; and all stock
options granted to Executive shall immediately vest and be exercisable as of,
and for a period of twelve months after, the effective date of such termination.
6.03 "Disability" Defined. As used in this Agreement, the term
"Disability" means any mental or physical condition that results in the
Executive becoming unable to perform the essential functions of his position,
with reasonable accommodation, for a period of at least ninety (90) days. The
Executive shall be deemed to have a Disability at the end of such ninety (90)
day period.
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6.04 Surrender of Records and Property. Upon termination of
Executive's employment by Executive or by the Company, for any reason or for no
reason, Executive shall deliver promptly to the Company all records, manuals,
books, blank forms, documents, letters, memoranda, notes, notebooks, reports,
data, tables, and calculations, and copies thereof, in whatever medium, which
are the property of Employer or which relate in any way to the business,
products, practices, techniques, customers, suppliers, functions or operations
of Employer, and all other property and Confidential Information of Employer,
including, but not limited to, all documents which in whole or in part contain
any Confidential Information of Employer, which in any of these cases are in his
possession or under his control.
6.05 Resignation. If the Executive's employment is terminated for
any reason under the terms of this Agreement, he shall be deemed to resign (i)
if a member, from the Board of Directors of the Company and any subsidiary of
the Company or any other board to which he has been appointed or nominated by or
on behalf of the Company and (ii) from any position with the Company or any
subsidiary of the Company, including, but not limited to, as an officer of the
Company or any of its subsidiaries.
6.05 Successor. The Company, or any Person which controls the
Company, shall require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company by written agreement expressly to assume and agree to
perform this Agreement in the same manner and to the same extent as the Company
would be required to perform if no such succession had occurred. Failure of the
Company or a controlling entity to obtain such written agreement prior to the
effective date of any such succession followed by the failure of the successor
to honor this Agreement shall be a breach of this Agreement and shall entitle
Executive to the rights and benefits hereunder as though he had terminated his
employment with Employer for Good Reason, whether or not he terminates his
employment with Employer.
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7. Injunctive Relief; Arbitration.
7.01 Injunctive Relief. Executive agrees that (i) any breach or
threatened breach of Sections 5 or 6.04 shall be a material breach of this
Agreement, (ii) such breach will cause substantial harm to Employer and/or its
customers, the amount of which will be difficult to determine and compute, (iii)
the remedies of Employer at law for such breach would be inadequate to fully
compensate Employer for the harm caused thereby and (iv) in addition to, but not
to the exclusion of any other available remedy, Employer shall have the right to
enforce the provisions of Sections 5 and 6.04 by applying for and obtaining
temporary and permanent restraining orders, injunctions, decrees of specific
performance and other equitable relief from any court of competent jurisdiction
without the necessity of filing a bond therefor or proving irreparable harm.
7.02 Arbitration. Except as set forth in Section 7.01, any claim or
dispute of any nature between the parties to this Agreement arising directly or
indirectly from the relationship created by this Agreement shall be resolved
exclusively by arbitration in New York, New York, in accordance with the
applicable rules of the American Arbitration Association. The fees of the
arbitrator(s) and other costs (not including attorneys' fees and expenses)
incurred by the parties in connection with such arbitration shall be paid by the
party which is unsuccessful in such arbitration. The decision of the
arbitrator(s) shall be final and binding upon all parties. Judgment of the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. If any dispute is submitted to arbitration, each party shall, not later
than 30 days before the date set for hearing, provide to the other parties and
to the arbitrator(s) a copy of all exhibits upon which the party intends to rely
at the hearing and a list of all Persons each party intends to call at the
hearing.
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8. Indemnification.
8.01 Indemnification. Employer desires to have Executive serve as an
executive officer of the Company and as a member of the Management Committee of
the Company and as a member of the Board of Directors of the Company, free from
any undue concern for unpredictable, inappropriate or unreasonable legal risks
and personal liabilities by his acting in good faith in the performance of his
duties to the Company and will, therefore, (a) indemnify Executive to the
fullest extent permitted under New York law, (b) advance all expenses incurred
by Executive in defending any action or proceeding to which Executive is a party
by reason of the fact that he was or is a director or officer of the Company to
the fullest extent permitted under New York law, and (c) purchase and maintain
for the benefit of Executive directors and officers liability insurance policies
and errors and omissions insurance policies in reasonable amounts from
established and reputable insurers.
8.02 Indemnification Hereunder Not Exclusive. The indemnification
provided by this Agreement shall not be deemed to be exclusive of any other
rights to which Executive may be entitled under any Articles of Incorporation,
Bylaws, agreement or resolution of shareholders or directors, the Business
Corporation Law of the State of New York, or otherwise.
8.03 Survival. All agreements and obligations of Employer contained
in this Section 8 shall continue during the Term and shall continue thereafter
so long as Executive shall be subject to any possible claim or threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
arbitral, administrative or investigative, by reason of the fact that Executive
was serving as a director or officer of the Company.
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9. Miscellaneous.
9.01 Governing Law. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to conflict of laws issues.
9.02 Entire Agreement. This Agreement contains the entire agreement
of the parties relating to the employment of Executive by Employer and
supersedes all prior agreements and understandings with respect to such matters,
and the parties hereto have made no agreements, representations or warranties
relating to such employment which are not set forth herein; provided, however,
that the benefits conferred under this Agreement are in addition to, and not in
lieu of, any and all benefits conferred to Executive under plans and
arrangements of Employer.
9.03 Withholding Taxes. The Company may withhold from any
compensation and benefits payable under this Agreement all federal, state, city
or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
9.04 Amendments. No amendment or modification of the terms of this
Agreement shall be valid unless made in writing and signed by all parties
hereto.
9.05 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law but if any provision of this Agreement is held to be
invalid, illegal or unenforceable under any applicable law or rule, the
validity, legality and enforceability of the other provisions of this Agreement
will not be affected or impaired thereby.
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9.06 No Waiver. No waiver of any provision of this Agreement shall
in any event be effective unless the same shall be in writing and signed by the
party against whom such waiver is sought to be enforced and any such waiver
shall be effective only in the specific instance and for the specific purpose
for which given.
9.07 Assignment. This Agreement is a personal service contract and,
subject to Section 6.05, shall not be assignable by any party without the
written consent of the other parties.
9.08 Counterparts; Facsimile Signatures. This Agreement may be
executed in separate counterparts, each of which will be an original and all of
which taken together shall constitute one and the same agreement, and any party
hereto may execute this Agreement by signing any such counterpart. A facsimile
signature by any party on a counterpart of this Agreement shall be binding and
effective for all purposes. Such party shall subsequently deliver to each other
party an original, executed copy of this Agreement; provided, however, that a
failure of such party to delivery an original, executed copy shall not
invalidate its signature.
9.09 Notices. All notices and other communications relating to this
Agreement will be in writing and will be deemed to have been given when
personally delivered, or one Business Day following delivery to a reliable
overnight courier or following transmission by electronic facsimile. All notices
to the Company shall be addressed to the following address and facsimile number:
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: The President
Facsimile No.: 000-000-0000
With a copy to:
Xxxxx & Xxx Xxxxxx
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. XxXxxx
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or at such other address as the Company may have advised the Executive in
writing;
All notices to Executive shall be addressed to the Executive at the
following address:
000 Xxxx 00xx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
or at such other address as the Executive may have advised the Company in
writing.
9.10 Interpretation. The headings contained in this Agreement are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
[The remainder of this page has been intentionally left blank]
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IN WITNESS WHEREOF, Executive and the Company have executed this
Employment Agreement as of the date set forth in the first paragraph.
Xxxxx Industries Incorporated
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Chairman
/s/ Xxxxx X. Xxxxxx
-------------------------
Xxxxx X. Xxxxxx
EXHIBIT A
FORM OF OPTION AGREEMENT
EXHIBIT A to EMPLOYMENT AGREEMENT
XXXXX INDUSTRIES INCORPORATED
STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of this ___ day of __________, 2005, by Xxxxx
Industries Incorporated, a Delaware corporation (hereinafter called the
"Company"), with Xxxxx X. Xxxxxx (hereinafter call the "Holder"):
The Company has adopted a 2005 Incentive Plan (the "Plan"). Said Plan, as
it may hereafter be amended and continued, is incorporated herein by reference
and made part of this Agreement. Terms not otherwise defined herein shall have
the meaning ascribed to them in the Plan.
The Board, which in the absence of a Committee is charged with the
administration of the Plan pursuant to Section 4 of the Plan, has determined
that it would be to the advantage and interest of the Company to grant the
option provided for herein to the Holder as an inducement to remain in the
service of the Company or one of its subsidiaries, and as an incentive for
increased efforts during such service.
NOW, THEREFORE, pursuant to the Plan, the Company hereby grants to the
Holder as of the date hereof an option (the "Option") to purchase all or any
part of 1,200,000 shares of Common Stock of the Company, par value $.0001 per
share, upon the following terms and conditions:
1. The Option shall continue in force through _________, 2015 (the
"Expiration Date"), unless sooner terminated as provided herein and in the Plan.
Subject to the provisions of the Plan, the right to exercise the Options shall
vest as indicated below and the exercise price per share of the Options vesting
as of any date shall be the greater of twenty-two ($.22) cents per share and the
amount indicated below:
Date # of Shares Which Vest Exercise Price
---- ---------------------- --------------
The date hereof 240,000 Twenty-Two cents
September 15, 2006 240,000 Average FMV for thirty trading
days ended December 15, 2005
September 15, 2007 240,000 Average FMV for thirty trading
days ended September 15, 2006
September 15, 2008 240,000 Average FMV for thirty trading
days ended September 15, 2007
September 15, 2009 240,000 Average FMV for thirty trading
days ended September 15, 2008
For purposes hereof, FMV refers to the Fair Market Value of the shares as of the
date indicated.
(a) Except as provided hereinbelow, the Option may not be exercised unless
the Holder is then an employee (including officers and directors who are
employees), non-employee director, consultant, advisor, agent or independent
representative of the Company or any subsidiary of the Company or any
combination thereof and unless the Holder has remained in the continuous employ
or service thereof from the date of grant.
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(b) No installment under this option shall qualify for favorable tax
treatment as an Incentive Stock Option if (and to the extent) the aggregate Fair
Market Value of the Common Stock for which such installment first becomes
exercisable hereunder would, when added to the aggregate value of the Common
Stock or other securities for which this option or any other Incentive Stock
Options granted to Holder prior to the date hereof (whether under the Plan or
any other option plan of the Corporation or any Parent or Subsidiary) first
become exercisable during the same calendar year, exceed One Hundred Thousand
Dollars ($100,000) in the aggregate. Should such One Hundred Thousand Dollars
($100,000) limitation be exceeded in any calendar year, this option shall
nevertheless become exercisable for the excess shares in such calendar year as a
Non-Qualified Stock Option.
2. In the event that the employment or service of the Holder shall be terminated
prior to the Expiration Date (otherwise than by reason of death or disability),
the Option may, subject to the provisions of the Plan, be exercised (to the
extent that the Holder was entitled to do so at the termination of this
employment or service) at any time within three months after such termination,
but not after the Expiration Date, provided, however, that if such termination
shall have been for cause or voluntarily by the Holder and without the consent
of the Company or any subsidiary corporation thereof, as the case may be (which
consent shall be presumed in the case of normal retirement) or voluntarily by
the Holder and Holder accepts employment with a competitor of the Company, the
Option and all rights of the Holder hereunder, to the extent not theretofore
exercised, shall forthwith terminate immediately upon such termination. Nothing
in this Agreement shall confer upon the Holder any right to continue in the
employ or service of the Company or any subsidiary of the Company or affect the
right of the Company or any subsidiary to terminate his employment or service at
any time.
3. If the Holder shall (a) die while he is employed by or serving the Company or
a corporation which is a subsidiary thereof or within three months after the
termination of such position (other than termination for cause, or voluntarily
on his part and without the Consent of the Company or subsidiary corporation
thereof, as the case may be, which consent shall be presumed in the case of
normal retirement or voluntarily by the Holder and Holder accepts employment
with a competitor of the Company), or (b) become permanently and totally
disabled within the meaning of Section 22 (e) (3) of the Internal Revenue Code
of 1986, as amended (the "Code"), while employed by or serving any such company,
and if the Option was otherwise exercisable, immediately prior to the occurrence
of such event, then such Option may be exercised as set forth herein by the
Holder or by the person or persons to whom the Holder's rights under the Option
pass by will or applicable law, or if no such person has such right, by his
executors or administrators, at any time within one year after the date of death
of the original Holder, or one year after the date of permanent or total
disability, but in either case, not later than the Expiration Date.
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4. (a) The Holder may exercise the Option with respect to all or any part of the
shares then purchasable hereunder by giving the Company written notice in the
form annexed, as provided in paragraph 8 hereof, of such exercise. Such notice
shall specify the number of shares as to which the Option is being exercised and
shall be accompanied by payment in full in cash of an amount equal to the
exercise price of such shares multiplied by the number of shares as to which the
Option is being exercised; provided that, if permitted by the Board, the
purchase price may be paid, in whole or in part, by surrender or delivery to the
Company of securities of the Company having a fair market value on the date of
the exercise equal to the portion of the purchase price being so paid. In such
event fair market value should be determined pursuant to the Plan.
(b) The Holder shall, upon notification of the amount due, pay promptly
any amount necessary to satisfy applicable federal, state or local tax
requirements. In the event such amount is not paid promptly, the Company shall
have the right to apply from the purchase price paid any taxes required by law
to be withheld by the Company with respect to such payment and the number of
shares to be issued by the Company will be reduced accordingly.
5. Notwithstanding any other provision of the Plan, in the event of a change in
the outstanding shares of the Company by reason of a stock dividend, split-up,
split-down, reverse split, recapitalization, merger, consolidation, combination
or exchange of shares, spin-off, reorganization, liquidation or the like, then
the aggregate number of shares and price per unit subject to the Option shall be
appropriately adjusted by the Board, whose determination shall be conclusive. 1.
6. This Option shall be nontransferable and shall no be assignable, alienable,
saleable or otherwise transferable by the Holder other than by will or the laws
of descent and distribution except pursuant to a domestic relations order
entered by a court of competent jurisdiction. During the life of the Holder,
this Option shall be exercisable only by him. Notwithstanding the foregoing, to
the extent the Option is deemed a Non-Qualified Stock Option, the Holder shall
be permitted to transfer such Option to family members or family trusts
established by the Holder. Except as otherwise provided for herein, in the event
that the Holder terminates employment with the Company to assume a position with
a governmental, charitable, educational or similar non-profit institution, the
Holder may nominate a third party, including but not limited to a "blind" trust,
to act on behalf or and for the benefit of the Holder with respect to the
Option. In addition, the Holder may designate a beneficiary or beneficiaries to
exercise the rights of the Holder and receive any distributions upon the death
of the Holder.
7. Neither the Holder nor in the event of his death, any person entitled to
exercise his rights, shall have any of the rights of a member with respect to
the shares subject to the Option until shares have been registered in the name
of the Holder or his estate, as the case may be.
8. Any notice to the Company provided for in this Agreement shall be addressed
to the Company in care of its Chairman, Xxxxxxx Xxxxx, and any notice to the
Holder shall be addressed to him at his address now on file with the Company, or
to such other address as either may last have designated to the other by notice
as provided herein. Any notice so addressed shall be deemed to be given on the
second business day after mailing, by registered or certified mail, at a post
office or branch post office within the United States.
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9. In the event that any question or controversy shall arise with respect to the
nature, scope or extent of any one or more rights conferred by this Option, the
determination by the Board, or if one had been appointed, the Committee (as
constituted at the time of such determination) of the rights of the Holder shall
be conclusive, final and binding upon the Holder and upon any other person who
shall assert any right pursuant to this Option.
XXXXX INDUSTRIES INCORPORATED
By:
-------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Chairman
ACCEPTED AND AGREED:
-------------------------
Xxxxx X. Xxxxxx
23
FORM OF NOTICE OF EXERCISE
TO: XXXXX INDUSTIRES INCORPORATED
The undersigned hereby exercises his option to purchase __________ shares
of Common Stock of Xxxxx Industries Incorporated (the "Company") as provided in
the Stock Option Agreement dated as of __________, ___ at $__________ per share,
a total of $__________ and makes payment therefor as follows:
(1) To the extent of $__________ of the purchase price, the undersigned
hereby surrenders to the Company certificates for shares of its Common Stock
which, valued at $__________ per share, the fair market value thereof, equals
such portion of the purchase price.
(2) To the extent of the balance of the purchase price, the undersigned
has enclosed a check payable to the order of the Company for $__________.
A stock certificate or certificate for the shares should be delivered in
person or mailed to the undersigned at the address shown below.
The undersigned hereby represents and warrants that it is his present
intention to acquire and hold the aforesaid shares of Common Stock of the
Company for his own account for investment, and not with a view to the
distribution of any thereof, and agrees that he will make no sale, thereof,
except in compliance with the applicable provisions of the Securities Act of
1933, as amended.
Signature: _______________________
Address: _________________________
_________________________
_________________________
Dated: ____________
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