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XXXXXX TECHNOLOGIES, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into this 9th day of
November, 2001 (the "Effective Date"), by and between Xxxxxx Technologies, Inc.,
a Delaware Corporation, Xxxxxx Technologies, Inc., a New York Corporation
(hereinafter collectively referred to as "Xxxxxx Technologies," "Xxxxxx" or
"Company"), both having a business address of 00-00 00xx Xxxxxx, Xxxx Xxxxxx
Xxxx, XX 00000, and Xxxxxxx X. Xxxxxx (hereinafter referred to as "Employee"),
residing at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WITNESSETH:
WHEREAS, Employee is currently the President of the Company, without any
written agreement between the Company and Employee governing the terms of such
office; and
WHEREAS, the Company desires to employ Employee as the President and Chief
Operating officer of the Company pursuant to the terms hereof; and
WHEREAS, Employee desires to be so employed.
NOW THEREFORE, in consideration of the premises, of the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
I Employment
Xxxxxx Technologies hereby employs Employee, and Employee hereby agrees to
be employed, as President and Chief Operating Officer ("COO") of the Company
upon the terms and conditions herein set forth.
II Duties and Responsibilities
As President and COO, Employee shall have authority and responsibility for
the day-to-day management and operations of the Company, including but not
limited to cash management and managing the relationship with the Company's
distributors, in accordance with the Company's strategic objectives and budget.
In addition, Employee shall perform such other responsibilities and duties
that may be assigned to him, from time to time by the Board of Directors of the
Company, customarily appertaining to the role of President and COO.
During Employee's term of employment hereunder, the following positions
within the Company shall report directly to Employee: Executive Vice-President;
Vice-President of Operations; Vice-President of MIS; Director of Finance and
Administration; Controller; Director of Quality Assurance; Director of Customer
Service; and Director of Human Resources.
Employee agrees to devote his reasonable best diligence and his full time
to the performance of his duties hereunder. Within ten (10) business days
following the Effective Date of this Agreement, Employee shall resign as a
Managing Director of Greystone and shall terminate any employment relationship
with Greystone. Throughout the term of this Agreement, Employee may not hold any
office at Greystone or maintain any employment relationship with Greystone.
Notwithstanding the foregoing, Employee may possess an interest or engage
independently or with others in other business or ventures of every nature and
description except as otherwise prohibited pursuant to Section IX (i) of this
Agreement. In the event that Employee has any business dealings with Greystone
during the term of this Agreement, he shall provide the Company's Board of
Directors with details thereof, in writing, no later than five (5) business days
following any such business dealing. During the term of this Agreement, Employee
may not disclose any substantive information to Greystone concerning, relating
to or potentially affecting the Company unless and until Employee has notified
the Company's CEO or Board of Directors and has received prior authorization
from the Company's CEO or Board of Directors. Subject to the foregoing, Employee
is otherwise free to communicate with Greystone provided that such does not
interfere in any way with the performance of his obligations under this
Agreement. (As used in this Agreement, "Greystone" refers to Greystone & Co.,
together with its principals, officers, affiliates, subsidiaries and related or
controlled entities.)
Employee shall serve as a member of the Company's Board of Directors,
subject to election by the Company's shareholders. As a Director, Employee shall
have all the rights, responsibilities and obligations conferred and/or imposed
upon all the members of the Board of Directors pursuant to relevant law, rule
and regulation, as well as the Company's Certificate of Incorporation and
By-Laws.
Employee's principal place of employment shall be at the Company's
headquarters in Long Island City, New York; Employee shall travel as reasonably
required in the performance of his duties hereunder.
III Reporting
Throughout the term of this Agreement, Employee shall report to the
Company's CEO. The Employee shall take no action which will, more likely than
not, have a major impact on the Company's ability to accomplish its strategic
goals without first consulting with and obtaining approval from the CEO. The CEO
will consult with Employee, and they shall jointly make an effort to agree, on
strategic matters concerning the Company. Pursuant to such consultations,
Employee will implement the decision made and/or policy adopted by the CEO.
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IV Term
The term of Employee's employment hereunder shall be three (3) years,
ending on October 31, 2004.
V Compensation & Benefits
Xxxxxx Technologies shall pay Employee, as full consideration for the
services to be rendered hereunder, compensation consisting of the following:
(1) An initial Annual Base Salary of $240,000, payable bi-monthly or in
accordance with any other payment schedule as may be adopted
generally for the payment of the Company's payroll. Said Annual Base
Salary may be increased annually, on each anniversary of the
Effective Date of this Agreement (the "Anniversary Date"), as
follows: (a) in the event that the aggregate EBITDA earned by the
Company, during the four consecutive fiscal quarters ending on the
September 30th immediately preceding the Anniversary Date, is
greater than zero, the Annual Base Salary shall be increased by a
minimum of eight percent (8 %), or by such greater percentage as may
be determined by the Board of Directors in the exercise of its
discretion; or (b) in the event that the aggregate EBITDA earned by
the Company, during the four consecutive fiscal quarters ending on
the September 30th immediately preceding the Anniversary Date, is
equal to or less than zero, the Annual Base Salary shall not be
increased. Additionally, Employee shall be eligible for annual
merit, or cost-of-living increases as may be determined by the
Executive Compensation Committee of the Board of Directors.
(2) In the event that the EBITDA earned by the Company during any fiscal
year during the term of this Agreement exceeds $ 3,000,000, Employee
shall receive incentive compensation in the amount of one percent
(1%) of such EBITDA. However, such incentive compensation is capped
at $100,000 per fiscal year; in no event shall Employee receive more
than $100,000 in such incentive compensation per fiscal year. (To
illustrate, in the event that the Company's EBITDA equals $3,000,000
or less during any fiscal year, Employee shall not receive any
incentive compensation hereunder; in the event that the Company's
EBITDA equals $4,000,000 during any fiscal year, Employee shall
receive incentive compensation in the amount of $40,000; and in the
even that Company's EBITDA equals $10,000,000 or more during any
fiscal year, Employee shall receive incentive compensation in the
amount of $100,000.)
(3) One hundred fifty thousand (150,000) employee stock options, to be
issued as of the Effective Date of this Agreement pursuant to the
Company's 1996 Employee Stock Option Plan, having the following
terms: (i) 50,000 of such options shall have an exercise price equal
to the average closing price of the Company's publicly-traded shares
during the 5-day trading period ending on the Effective Date.;
50,000 of such options shall have an exercise price of $1.00; and
50,000 of such options shall have an exercise price of $1.50; and
(ii) the options shall vest over the 3-year term of this Agreements
(i.e., 50,000 shall be vested as of the end of the first year of
said term, an additional 50,000 shall be vested as of the end of the
second year of said term, and the remaining 50,000 shall be vested
as of the end of the third year of said term).
(4) Participation in any incentive compensation plan, pension or
profit-sharing plan, stock purchase or stock option plan,
(including, without limitation, the Company's 1996 Employee Stock
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Option Plan), annuity or group insurance plan previously adopted by
the Company or which may be adopted by the Company at some future
date, on terms and in amounts no less favorable than provided for
other Xxxxxx employees similarly employed.
(5) Immediate vesting of all Company stock options held by or issued to
Employee in the event that, and at such time as, Xxxxxx Technologies
has a change in control or is acquired by another entity or company.
(For purposes of this Agreement, "control" is defined as any event
or circumstance that would require disclosure pursuant to Item 1 of
Form 8-K or any comparable requirement of the Securities and
Exchange Commission.).
(6) Employment benefits generally provided to Xxxxxx employees,
including medical and dental insurance, on terms and in amounts no
less favorable than provided for other Xxxxxx employees similarly
employed.
(7) Fifteen (15) business days per year for vacation time, and five
business days per year for sick or personal leave, during which
times Employee will be compensated the normal pro-rated portion of
his base salary.
(8) Reimbursement for all expenses incurred by Employee in the ordinary
course of his performance of duties hereunder and submitted by him
with supporting documentation to the Company's accounting
department, in terms no less favorable than provided for other
Xxxxxx employees similarly employed.
VI Termination For Cause
The Company shall have "cause" to terminate this Agreement in the event
that : (i) all of the members of the Company's Board of Directors, excluding
Employee, determine that (a) the Employee has committed an act of fraud against
the Company, or (b) the Employee has committed an act of malfeasance,
recklessness or gross negligence against the Company that is injurious to the
Company or its customers; or (ii) the Employee has materially breached the terms
of this Agreement; or (iii) the Employee's indictment or conviction for or plea
of no contest to, a felony or a crime involving the Employee's moral turpitude.
If Employee's termination for cause hereunder is based upon Employee's material
breach of the terms of this Agreement, then Employee shall be given 30 days'
notice of such termination and shall have the opportunity to cure such material
breach during said 30-day period.
VII Severance
In the event that Employee is terminated by the Company for cause,
pursuant to the terms of Section VI above, he shall receive no severance
payments from the Company.
In the event that Employee's employment hereunder is terminated on any
other grounds, he shall continue to receive the compensation and benefits set
forth in Section V above for a period of two (2) years or the remainder of the
term of this Agreement, whichever time period is shorter.
If the Company effects any change in Employee's title, or diminishes, in
any significant manner, Employee's duties or responsibilities of employment,
then Employee shall have the immediate right, at his sole option, to
unilaterally resign from employment hereunder. In the event of such resignation,
Employee shall continue to receive the compensation and benefits set forth in
Section V above for a
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period of one year following the date of such resignation, and shall make
himself available to act as a consultant for the Company during such one-year
period.
VIII Non-Disclosure
(1) Employee recognizes that the Company possesses and will continue to
possess non-public information that has been created, discovered,
developed, or otherwise become known to it, and/or in which property
rights have been assigned or otherwise conveyed to it, which
information has commercial value in the business in which it is
engaged or may become engaged. All of the aforementioned information
is hereinafter called "Proprietary Information."
(2) By way of illustration, but not limitation, Proprietary Information
includes trade secrets, processes, structures, formulas, data,
know-how, improvements, inventions, product concepts, techniques,
marketing plans, strategies, forecasts, customer lists and
information about the Company's employees and/or consultants.
(3) At all times, both during Employee's employment by the Company and
after its termination, Employee shall keep in confidence and trust
all Proprietary Information, and Employee shall not use or disclose
any Proprietary Information or anything directly relating to it
without the written consent of the Chief Executive Officer of the
Company, except as may be necessary in the ordinary course of
Employee's performing his duties as an employee of the Company and
only for the benefit of the Company.
IX Non Competition and Non Solicitation
During the period of Employee's employment by the Company and for a period
of twelve months following the termination of the Employee's Employment with the
Company for cause (as defined in Paragraph VI of this Agreement), Employee shall
not: (i) engage or become interested in any way (whether as an owner,
stockholder, partner, lender, investor, director, officer, employee, consultant
or otherwise) in any activity, business or enterprise, located within the
geographical area of the United States or Canada, that is competitive with any
significant part of the business conducted by the Company or as contemplated to
be conducted by it which, for purposes of this Paragraph, shall be deemed to be
competitive if it involves predominantly similar types of products or services
and is directed at predominantly similar types of customers as any business of
the Company (except that ownership of not more than 5% of the outstanding
securities of any class of any corporation that are listed on a national
securities exchange or traded in the over-the-counter market shall not be
considered a breach of this Paragraph ); or (ii) solicit or hire for any purpose
any employee of the Company, or any employee who has left such employment within
the previous six months.
X Miscellaneous Provisions
(1) Acknowledgments and Affirmations: Employee recognizes, understands,
agrees and acknowledges that the Company has a legitimate and
necessary interest in protecting its goodwill and Proprietary
Information. Employee further affirms, represents, and acknowledges
that in the event of Employee's termination of employment with the
Company, Employee's experience and capabilities are such that the
enforcement of this Agreement will not prevent him from obtaining
employment in another line of business different from that carried
on by the
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Company and permitted under this Agreement. Employee further
affirms, represents and acknowledges that Employee has received good
and valuable consideration for entering into this Agreement.
(2) Remedies for Breach. Employee agrees that any breach of this
Agreement by Employee would cause irreparable damage to the Company
and that, in the event of such breach, the Company shall have, in
addition to any and all remedies at law, the right to an injunction,
specific performance or other equitable relief to prevent or redress
the violation of Employee's obligations hereunder.
(3) Separability. If any provision hereof shall be declared
unenforceable for any reason, such unenforceability shall not affect
the enforceability of the remaining provisions of this Agreement.
Further, such provision shall be reformed and construed to the
extent permitted by law so that it would be valid, legal and
enforceable to the maximum extent possible.
(4) Applicable Law. Any dispute arising under or related in any manner
to this Agreement or to Employee's employment by the Company or to
the termination of said employment shall in all respects be governed
by, adjudicated, construed and enforced in accordance with the laws
of the State of New York.
(5) Jurisdiction and Venue. Employee irrevocably and unconditionally
submits to the exclusive jurisdiction of any United States federal,
state or city court sitting in New York in any action or proceeding
relating in any manner to this Agreement or to Employee's employment
by the Company or to the termination of said employment. Further,
Employee irrevocably and unconditionally agrees that all claims
relating in any manner to this Agreement or to Employee's employment
by the Company or to the termination of said employment may be heard
and determined in any such court and waives any objection Employee
may now or hereafter have as to venue of any such action or
proceeding brought in such court or the fact that such court is an
inconvenient forum.
XXXXXX TECHNOLOGIES, INC. XXXXXXX X. XXXXXX
00-00 00XX Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
By: /S/ Xxxxx X. Xxxxxx
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/S/ Xxxxxxx X. Xxxxxx
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Title: Chief Executive Officer (signature)
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Date: November 9, 2001 Date: November 9, 2001
