EXHIBIT 10.9
EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement") dated as of July 12, 1999 between
MUSE Technologies, Inc., a Delaware corporation (the "Company"), and Xxxxx
Xxxxxx (the "Executive").
ARTICLE I
EMPLOYMENT
The Company hereby employs the Executive, and the Executive accepts
employment with the Company, upon the following terms and conditions:
I.1 Employment. The Company hereby employs the Executive, and the
Executive agrees to serve, as the Vice President, Communications of the Company
and its subsidiaries (the "Subsidiaries") during the term of this Agreement.
Subject to the President of the Company and the President of each Subsidiary,
the Executive shall actively manage and have responsibility for and supervision
over the business activities and affairs of the Company and the Subsidiaries,
with respect to communications, and he shall manage, supervise and direct its
and their officers, employees and agents, with respect to Communications. The
Executive agrees to devote his full business time and attention and best efforts
to the affairs of the Company and the Subsidiaries during the term of this
Agreement.
I.2 Term. The Employment of the Executive by the Company under the
terms and conditions of this Agreement will commence as of July 12, 2000 and
continue until July 12, 2001 (the "Term") unless terminated sooner in accordance
with the provisions of Article IV.
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ARTICLE II
COMPENSATION
II.1 (a) Annual Salary. During the Term the Company shall pay to the
Executive an annual salary of $110,000 (the "Base Salary") payable in equal
installments every two weeks. The President shall review the performance of the
Executive annually and thereafter, at the sole discretion of the President,
determine whether the Executive is entitled to an increase in the Base Salary.
(b) Performance Bonus. In addition to any other compensation to be
received pursuant to this Agreement, the Vice President, Business Development
shall be entitled to receive an annual performance bonus (the "Performance
Bonus") of up to thirty-two and one-half percent (32.5%) (the "Bonus Rate") of
the Base Salary based upon the Company achieving revenue and profit targets or
other similar objectives established by the President, and approved by
Compensation Committee thereof for each fiscal year which ends during the Term
(or a partial fiscal year in the case of death, a Permanent Disability
determination or expiration of the Term). The President and Compensation
Committee thereof shall review the performance of the Vice President,
Communications annually and, thereafter, determine whether the Vice President,
Communications is entitled to an increase in the Bonus Rate. The Performance
Bonus shall be paid in cash periodically as the President directs, but no less
frequently than annually, promptly after the close of each fiscal year and of
the preparation of fiscal year financial statements, but in no event later than
90 days from such fiscal year end. Notwithstanding the foregoing, the
Performance Bonus for the Vice President, Communications for fiscal year 1999
shall be determined by the President, independent of any established revenue and
profit targets or other similar objectives established by the President and
approved by Compensation Committee thereof for 1999.
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II.2 Stock Options. The Executive will be eligible to receive grants of
stock options under the Company's Stock Option Plan as the President shall
determine. As of the date of this Agreement, subject to the terms of the Stock
Option Plan, the Director shall be entitled to receive stock options under the
Company's Stock Option Plan exercisable for 30,000 and 30,000 shares of common
stock of the Company and vesting on July 12, 2000 and July 12, 2001,
respectively, at an exercise price per share of $7.50, in the event the Vice
President, Communications' employment with the Company has not been terminated
prior to each such vesting date, as the case may be.
II.3 Reimbursement of Expenses. The Executive shall be entitled to
receive prompt reimbursement of all reasonable expenses incurred by the
Executive in performing services hereunder, including all expenses of travel,
entertainment and living expenses while away from Albuquerque, NM on business at
the request of, or in the service of, the Company or any Subsidiary, provided
that such expenses are incurred and accounted for in accordance with the
policies and procedures and approved operating budget established by the
Company.
II.4 Benefits. The Executive shall be entitled to participate in and be
covered by all health, insurance, pension and other employee plans and benefits
established by the Company (collectively referred to herein as the "Company
Benefit Plans") for its Executive employees generally, subject to meeting
applicable eligibility requirements.
II.5 Vacations and Holidays. During the Term, the Executive shall
accrue personal leave of 6.15 hours per pay period up to a maximum of 160 hours
per year. The Executive may utilize this personal leave for vacation, illness,
doctor visits, etc. The Executive shall also be entitled to such holidays as are
established by the Company for all employees and such other religious holidays
as is customary pursuant to the Executive's religious practice.
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ARTICLE III
CONFIDENTIALITY AND NONDISCLOSURE
III.1 Confidentiality. The Executive will not during his employment by
the Company or thereafter at any time disclose, directly or indirectly, to any
person or entity or use, or permit the use of, any trade secrets or confidential
information relating to the Company or any Subsidiary (the "Confidential
Information") except as required by law. "Confidential Information" shall
include, but shall not be limited to, the terms of any agreement for the
development or commercialization of any hardware or software or technology
related thereto, the terms of any license, marketing, sales or distribution
agreement relating to any of the foregoing, and all information denominated as
"Confidential" and made available only on a restricted basis; provided however,
that "Confidential Information" shall not include information which comes into
the public domain through no fault of the Executive or which the Executive
obtains after the termination of employment with the Company or otherwise from a
third party who, to the knowledge of the Executive, has the right to disclose
such information.
III.2 Return of Company Material. The Executive shall promptly deliver
to the Company on termination of the Executive's employment with the Company,
for whatever the reason, or at any time the Company may so request, all Company
or Subsidiary memoranda, notes, records, reports, manuals, drawings, computer
software, and all documents containing Confidential Information belonging to the
Company, including all copies of such materials which the Executive may then
possess or have under the Executive's control irrespective of the format of such
materials.
III.3 Non-Competition. During the Term and for up to a one-year period
thereafter (the "Non-Compete Period") the Executive will not, directly or
indirectly, without the consent of the President of the Company: (i) own,
manage, operate, join, control, or participate in or be connected with, as an
officer, employee partner, stockholder, director, adviser, consultant, or agent
(whether paid or unpaid), any business, which is at the time engaged in any
activities
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which compete with the business of the Company or any Subsidiary; the foregoing
provision being also intended to prohibit the Executive from acquiring or
holding in excess of 5% of any issue of stock or securities of any Company which
has any securities listed on a national securities exchange or quoted in the
daily listing of over-the-counter market securities; (ii) utilize any employees
of the Company to perform any service which conflicts with their full-time
employment with the Company or otherwise take actions which result in the
termination of any employee's relationship with the Company; provided, however,
that notwithstanding any other provision contained in this Agreement, in the
event of termination of the Executive for any reason, the restrictions contained
in this Section III.3 shall be effective only for so long as the Company, at its
sole discretion, continues to pay the Executive his then monthly Base Salary in
advance during the Non-Compete Period.
III.4 Right to Injunctive and Equitable Relief As a result of the
Executive's position as an Executive, Manager, director and principal
shareholder of the Company, the Executive's obligations not to disclose or use
Confidential Information and to refrain from the activities described in this
Article III are of a special and unique character which gives them a peculiar
value and which is supported by valuable consideration. The Company cannot be
reasonably or adequately compensated in damages in an action at law in the event
the Executive breaches such obligations. Therefore, the Executive expressly
agrees that the Company shall be entitled to injunctive and other equitable
relief without bond or other security in the event of such breach in addition to
any other rights or remedies which the Company may possess. Furthermore, the
obligations of the Executive and the rights and remedies of the Company under
this Article III are cumulative and in addition to, and not in lieu of, any
obligations, rights, or remedies created by applicable law relating to
misappropriation or theft of trade secrets or confidential information.
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ARTICLE IV
TERMINATION
IV.1 Termination by the Company. The President may terminate the
Executive's employment hereunder as follows:
(a) Upon the death of the Executive, whereupon this Agreement
shall immediately terminate;
(b) Upon a determination of Permanent Disability; "Permanent
Disability" shall mean a physical or mental incapacity as a result of which the
Executive becomes totally unable to continue the performance of his duties
hereunder for a period of 180 consecutive days or an aggregate of 270 days in
any 24 month period. A determination of Permanent Disability shall be subject to
the certification of a qualified medical doctor agreed to by the Company and the
Executive or, in the event of the Executive's incapacity to designate a doctor,
the Executive's legal representative. In the absence of agreement between the
Company and the Executive, each party shall nominate a qualified medical doctor
and the two doctors so nominated shall select a third doctor, who shall make the
determination as to the occurrence and continuance of a Permanent Disability; or
(c) For cause. "Cause" shall mean only the following:
(i) the willful and, after written notice and a reasonable
opportunity to cure, continued failure by the Executive to follow the reasonable
directions of the Board not inconsistent with this Agreement (other than such
failure resulting from the Executive's incapacity due to physical or mental
illness);
(ii) willful and, after written notice and a reasonable
opportunity to cure, continued misconduct by the Executive that materially
adversely affects the Company;
(iii) conviction of a felony or guilty plea or plea of nolo
contendre to a crime or offense relating to the performance of the Executive's
duties to the Company;
(iv) willful theft from the Company;
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(v) a willful violation of any law, rule or regulation, or the
imposition of a final order issued by any regulatory authority against the
Company, which, in any event, prohibits the Executive from holding an Executive
position with the Company or any Subsidiary;
(vi) the Executive's habitual drunkenness or habitual use of
illegal substances, after notice to cease and the opportunity provided by the
Company to enter into and successfully complete a reputable rehabilitation
program at the expense of the Company; or
(vii) the Executive fails to substantially perform any
material term or provision of this Agreement.
For purposes of this Agreement, no act, or failure to act, on the
Executive's part shall be considered "willful" unless done, or omitted to be
done, by the Executive in bad faith and without a reasonable belief that such
action or omission by the Executive was in the best interests of the Company,
and no termination by the Company for "Cause" shall be effective unless the
Executive shall have been given written notice of the breaches of this Section
IV.1(c), (i) and (ii) for a period of 30 days within which to cure any such
breach provided that such curative period shall be permitted only once in any 12
month period,
IV.2 Severance Payments.
(a) Termination for Cause. In the event of termination pursuant to
Section IV.1(c), the Executive shall receive no severance, and shall be entitled
to receive, in lieu of any other payments or benefits, his accrued but unpaid
salary at the rate provided in Section II.1(a) (as increased from time to time
by the Board), plus any amounts earned but unpaid for any prior completed fiscal
or calendar year including discretionary bonuses for any prior calendar or
fiscal year, and any reimbursable expenses incurred prior to the date of
termination (collectively, the "Accrued Obligations").
(b) Termination as a Result of Death. In the event of termination
pursuant to Section IV.1(a), the Executive's estate or beneficiaries, as the
case may be, shall be entitled to receive, in addition to any other payments or
benefits hereunder, (i) the proceeds from any insurance policies paid for by the
Company in favor of the Executive's estate or beneficiaries,
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(ii) any Accrued Obligations. Such amounts shall be paid promptly in a lump sum
in cash. In addition, all options that are unvested at the date of termination
shall vest, and the restriction on any options or stock held by the Executive
shall terminate.
(c) Termination Without Cause or For Good Reason. In the event of
termination by the Company without Cause or by the Executive for Good Reason,
the Executive shall be entitled to receive (i) Accrued Obligations through the
date of termination, plus (ii) an amount equal to one-quarter (three (3) months)
of his Base Salary or a greater amount determined in the sole discretion of the
President (each of the amounts in subclauses (i) and (ii) payable in a lump sum
in cash within 30 days after the date of termination), (iii) continuation, at
the Company's expense, if allowable by law, of any group health (which may be
provided by payment of COBRA continuation coverage premiums), life insurance and
long-term disability coverage's at the levels in effect on the Executive's date
of termination for a period of twelve months following such date of termination,
and (iv) all options held by the Executive shall automatically vest, and the
restriction on any options or stock held by the Executive shall terminate.
(d) Voluntary Termination. If the Executive shall voluntarily
resign for other than Good Reason, he shall be entitled only to Accrued
Obligations through the effective date of such resignation or voluntary
termination, and that any such amounts shall be promptly paid in a lump sum in
cash.
(e) Termination due to Permanent Disability. If the Executive's
employment hereunder is terminated as a result of Permanent Disability, in lieu
of any other payments or benefits (other than any such disability benefits he
may receive), he shall be paid a single lump sum in cash within thirty (30) days
of the date of his termination, an amount equal to (i) all Accrued Obligations
plus (ii) all unpaid salary, whether or not accrued, remaining through the Term.
In addition the unvested portion of any options held by the Executive on such
date shall vest, and any restriction on any options or stock held by the
Executive shall terminate.
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(f) General Release. Prior to the Executive's receipt of any
severance payment under this Section IV.3, the Executive shall issue a general
release to the Company in such form as the Company may reasonably require, which
release shall extinguish all actual or potential claims or causes of action he
has, may have had, or hereafter may have against the Company. The Company shall
simultaneously provide a release to the Executive in the form mutatis mutandis
given to the Company by the Executive.
(g) Other Payments Upon Termination. If notice of termination of
the Executive is given by the Executive or the Company, the Executive shall
continue to receive his Base Salary (as increased from time to time by the
Board), bonus payments and benefits as provided in Article II until the date of
termination, and shall also be entitled to reimbursement for reimbursable
expenses as set forth in Section II.2.
(h) Company's Option to Terminate Executive after Notice of
Termination. The Company, or, if notice is given by the Company, the Executive,
may, at any time during the period after notice of termination by the Executive
or the Company and before the date of termination specified in the notice given
in accordance with Section IV.1 or Section IV.2, as the case may be (the "Notice
Period"), elect to terminate this Agreement and the Executive's employment
hereunder immediately. In such event the Company shall pay the Executive an
amount equal to all Accrued Obligations he would have received or been entitled
to for the duration of the Notice Period at the rate provided in Article II.
Such amounts shall be paid within five (5) days after the election pursuant to
this Section IV.3(h). Nothing contained in this Section IV.3(h) shall be deemed
to reduce in any way any amounts due the Executive pursuant to any other term or
provision of this Article IV.
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ARTICLE V
ASSUMPTION OF OBLIGATIONS BY SUCCESSOR TO COMPANY
V.1 Merger etc.; Change of Control
In the event of a future disposition of the properties and
business of the Company substantially as an entirety by merger, consolidation,
sale of assets, reorganization or otherwise, then the Company may elect:
(i) to assign this Agreement and all of its rights and
obligations hereunder to the acquiring, surviving or reorganized entity;
provided that such entity shall assume in writing all of the obligations of the
Company hereunder; and provided further, that the Company (in the event and so
long as it remains in existence) shall remain liable for the performance of its
obligations hereunder in the event of a breach of this Agreement by the
acquiring, surviving or reorganized entity; or
(ii) in addition to its other rights of termination, to
terminate this Agreement upon at least 90 days' written notice and by paying the
Executive an amount equal to (a) all Accrued Obligations through the date of
termination, plus (b) an amount equal to his Base Salary for one year, all such
amounts pursuant to subclauses (a) and (b) shall be payable in a single lump sum
within 30 days after the date of termination. In addition, upon the date of
termination hereunder, (A) all options which the Executive then holds which are
not vested shall immediately vest , (B) the restrictions on any stock held by
the Executive shall terminate, (C) the Executive, at the Company's expense, if
allowable by law, shall continue to be a participant in any group health (which
may be provided by payment of the COBRA continuation coverage premiums), life
insurance and long-term disability plans or programs maintained by the Company
at the level in effect on the Executive's date of termination for a period of
twelve months following his date of termination.
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ARTICLE VI
GENERAL PROVISIONS
VI.1 Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt required, postage prepaid, as follows:
If to the Company:
MUSE Technologies, Inc.
0000 Xxxxxxxx, XX,
Xxxxxxxxxxx, XX 00000
Attn: Chairman, Compensation Committee of the Board of Directors
If to Executive:
Xxxxx Xxxxxx
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
VI.2 No waivers. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by the Executive and the Company. No waiver by either party
hereto at any time or any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver or similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
VI.3 No Mitigation; No Offset. In the event of the Executive's
termination of employment, he shall be under no obligation to seek other
employment and there shall be no offset against any amounts due the Executive
hereunder on account of any remuneration the Executive may obtain from any
subsequent employment.
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VI.4 Arbitration. Any and all disputes or controversies arising out of
or relating to this Agreement, other than injunctive relief pursuant to Section
III.4, shall be resolved by arbitration at the American Arbitration Association
at its New Mexico offices before a panel of three arbitrators under the then
existing rules and regulations of the American Arbitration Association. The
parties agree that in any such arbitration, the arbitrators shall not have the
power to reform or modify this Agreement in any way and to that extent their
powers are so limited. The determination of the arbitrators shall be final and
binding on the parties hereto and judgment on it may be entered in any court of
competent jurisdiction. Except as required by law, neither the Company nor the
Executive shall issue any press release or make any statement which is
reasonably foreseeable to become public with respect to any arbitration or
dispute between the parties without receiving the prior written consent of the
other party to the content of such press release or statement. In the event the
Executive prevails in such proceedings, as determined by the arbitrators, the
Company shall reimburse the Executive for all expenses (including, without
limitation, reasonable legal fees and expenses) incurred by the Executive in
connection with such proceeding or any other proceeding in which the Executive
prevails in contesting or defending any claim or controversy arising out of or
relating to this Agreement. All such amounts shall be paid promptly, but in any
event within ten (10) days after the Executive provides the Company with a
statement of such amounts to be recovered. In the event the Executive does not
prevail in such proceedings, as determined by the arbitrators, each party hereto
shall be responsible for their own expenses (including, without limitation,
legal fees and expenses) incurred in connection with such proceedings.
VI.5 Indemnification. In addition to the indemnification provided under
the Company's Articles of Incorporation and By-Laws, the Company hereby agrees
to hold the Executive harmless and indemnify the Executive from and against, and
to reimburse the Executive for, any and all judgments, fines, liabilities,
amounts paid in settlement and expenses, including attorneys' fees, incurred
directly or indirectly as a result of or in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
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administrative or investigative, whether or not such action, suit or proceeding
is by or in the right of the Company to procure a judgment in its favor,
including an action, suit or proceeding by or in the right of any other
corporation of any type or kind, domestic or foreign, or any partnership, joint
venture, trust, employee benefit plan or other enterprise for which the
Executive served in any capacity at the request of the Company, to which the
Executive is, was or at any time becomes a party, or is threatened to be made a
party, or a result of or in connection with any appeal therein, by reason of the
fact that the Executive is or was at any time a director, officer, employee or
agent of the Company; provided, however, that (i) indemnification shall be paid
pursuant to this paragraph if and only if the Executive acted in good faith and
in a manner reasonably believed by the Executive to be in or not opposed to the
best interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the Executive's conduct was
unlawful; and (ii) no indemnification shall be payable pursuant to this
paragraph if a court having jurisdiction in the matter shall determine that such
indemnification is not lawful.
VI.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the New Mexico without regard to its
Conflicts of Laws provisions.
VI.7 Severability or Partial Invalidity. The invalidity or
unenforceability of any provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
VI.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
VI.9 Entire Agreement. This Agreement constitutes the entire agreement
of the parties and supersedes all prior written or oral and all contemporaneous
oral agreements, understanding, and negotiations between the parties with
respect to the subject matter hereof. This Agreement is intended by the parties
as the final expression of their agreement with respect of such terms as
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are included in this agreement and may not be contradicted by evidence of any
prior or contemporaneous agreement. The parties further intend that this
Agreement constitutes the complete and exclusive statements of its terms and
that no extrinsic evidence may be introduced in any judicial proceeding
involving this Agreement.
VI.10 Assignment. Subject to the provisions of Article V hereof, this
Agreement and the rights, duties and obligations hereunder may not be assigned
or delegated by any party without the prior written consent of the other party.
Any such assignment or delegation without the prior written consent of the other
party shall be void and be of no effect. Notwithstanding the foregoing
provisions of this Section VI.10, the Company may assign or delegate its rights,
duties and obligations hereunder to any person or entity which succeeds to all
or substantially all of the business of the Company through merger,
consolidation, reorganization, or other business combination or by acquisition
of all or substantially all of the assets of the Company; provided that such
person assumes the Company's obligations under this Agreement in accordance with
Section V.1
VI.11 Beneficial Interests. This Agreement shall inure to the benefit
of and be enforceable by the Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amounts are still payable to him
hereunder, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisee, legatee,
or other designee, if there be no such designee, to the Executive's estate.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MUSE TECHNOLOGIES, INC.
A Delaware corporation
By:
--------------------------------
Name:
Title:
EXECUTIVE
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Xxxxx Xxxxxx
