Exhibit 10.30
EMPLOYMENT AGREEMENT
Agreement made as of the 5th day of May, 1997, between
XXXXX XXXXXX CORPORATION, a Delaware corporation (the "Company"),
and Xxxx X. Xxxxxxxxxxx (the "Executive").
WHEREAS, the Company has confirmed its Third Amended
Second Joint Plan of Reorganization Under Chapter 11 of the
United States Bankruptcy Code, as modified by the Technical
Amendments to the Debtors' Third Amended Second Joint Plan of
Reorganization (the "Plan").
WHEREAS, the Company desires to continue to employ the
Executive, and the Executive desires to accept continued
employment with the Company, but only on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements hereinafter set forth, the Company and
the Executive hereby agree as follows:
1. The Company shall employ the Executive, and the
Executive shall serve the Company, for the period beginning on
March 1, 1997 and expiring on March 1, 2000, unless sooner
terminated pursuant to the provisions of Section 4 hereof (the
"Employment Period").
2. During the Employment Period, the Executive shall
serve the Company as its Executive Vice President and Chief
Financial Officer. During the Employment Period, the Executive
shall, except during vacation or sick leave, devote the whole of
his time, attention and skill during usual business hours (and
outside those hours when reasonably necessary to his duties
hereunder) to his duties hereunder; faithfully and diligently
perform such duties and exercise such powers as may be from time
to time assigned to or vested in him by the Company's Board of
Directors (the "Board"); obey the directions of the Board; and
use his best efforts to promote the interests of the Company.
The Executive may be required in pursuit of his duties hereunder
to perform services for any company controlling (assuming the
Executive declines to exercise any resignation right pursuant to
Section 4(d) hereof), controlled by or under common control with
the Company (such companies hereinafter collectively called
"Affiliates") and to accept such offices in any Affiliates as the
Board may require. The Executive shall obey all policies of the
Company and applicable policies of its Affiliates.
3. a. During the Employment Period, the Company
shall pay the Executive a salary at an annual rate of $_______
subject to increase by the Board in its sole discretion, which
shall be payable periodically in accordance with the Company's
then prevailing payroll practices.
b. The Company shall award the Executive NewSCC
Common Stock (as defined in the Plan) pursuant to Section 6.3 of
the Plan in an aggregate amount which shall at all times
constitute 1% of the total shares of NewSCC Common Stock which
are issued pursuant to the Plan, determined on a fully-diluted
basis, not including the effect of the exercise of any of the
NewSCC Warrants (as defined in the Plan). The Executive's rights
to such shares shall vest on the second anniversary of the
Effective Date; provided, however, at the Executive's option,
that such shares may vest earlier at the time of a Change in
Control (as defined in Section 4(d) hereof). The Executive shall
be eligible to participate in the employee stock incentive or
other similar plan described in Section 6.2 of the Plan in
accordance with the provisions thereof. The Executive also shall
be eligible to participate in such other incentive compensation
programs as may be established by the Board that the Company
generally provides to its employees having rank and seniority at
the Company comparable to the Executive.
c. The Executive shall be entitled to four (4)
weeks of vacation per calendar year with any unused vacation time
carried over to the first quarter of the next calendar year. If
the prior year's vacation time is not used by the end of said
first quarter, the Company shall pay the Executive for the unused
time at his regular annual rate thereby discharging its
obligation with respect to the unused time.
d. The Executive shall be entitled to such
expense accounts, sick leave, perquisites of office, fringe
benefits, insurance coverage (including the Company's Executive
Medical and Life Insurance Programs), and other terms and
conditions of employment as the Company generally provides to its
employees having rank and seniority at the Company comparable to
the Executive. In addition, the Executive shall have annual
physical examinations at the Company's expense.
4. Unless terminated in accordance with the following
provisions of this Section 4, the Company shall continue to
employ the Executive and the Executive shall continue to work for
the Company, during the Employment Period.
a. This Agreement shall terminate automatically
upon the death of the Executive.
b. The Company may terminate the Executive's
employment if the Executive suffers from a physical or mental
disability to an extent that renders it impracticable for the
Executive to continue performing his duties hereunder. The
Executive shall be deemed to be so disabled if (i) a physician
selected by the Company advises the Company that the Executive's
physical or mental condition will render the Executive unable to
perform his duties for a period exceeding three consecutive
months, or (ii) due to a physical or mental condition, the
Executive has not substantially performed his duties hereunder
for a period of three consecutive months. The Company will
provide the Executive with long-term disability insurance.
c. The Company may terminate the Executive's
employment at any time for cause; cause shall mean (i) a default
or other breach by the Executive of his obligations under
Sections 1, 2, 5, 6, 8 and 17 of this Agreement, (ii) misconduct,
dishonesty, insubordination or other act by the Executive
detrimental to the good will of the Company or damaging to the
Company's relationships with its customers, suppliers or
employees, (iii) the conviction of a felony, or (iv) any act of
disloyalty or breach of trust by the Executive.
d. The Company may terminate the Executive's
employment at any time without cause. The Executive may resign
from his employment at any time. In the event that the Executive
is terminated without cause, or resigns within thirty (30) days
following a Change of Control (as hereinafter defined), (i) the
Company shall continue to pay the Executive at a rate equivalent
to his regular base salary until the date one (1) year from the
date of termination or resignation; (ii) the Company shall
continue to provide medical insurance to the Executive until the
date one (1) year from the date of termination or resignation;
and (iii) the Company shall pay the Executive any accrued but
unused vacation time for the current year and any accrued but
unused vacation time carried over from any prior year. Such
payments to the Executive by the Company will be in full and
complete satisfaction (except as provided in subsection (e)
below) of any and all obligations owing to the Executive pursuant
to this Agreement. "Change of Control" shall mean (i) a stock
purchase by any "person" (as such term is used in Sections 13(d)
and 14(d)(2) of the Securities and Exchange Act of 1934, as
amended) who then owns or by virtue of such purchase becomes the
beneficial owner of, directly or indirectly, voting securities of
the Company representing 51% or more of the combined voting power
of the Company's then outstanding voting securities or (ii) any
change in the composition of the Company's Board in any one year
which involves a majority of such directors and which is not
recommended by the Board.
e. Upon termination pursuant to (a), (b), (c) or
(d), above, the Company shall pay the Executive or his estate any
salary earned and unpaid to the date of termination, and any
outstanding funds advanced by the Company to or on behalf of the
Executive shall become immediately due and payable.
5. The Executive shall not divulge or communicate to
any person (except in performing his duties under this Agreement)
or use for his own purposes trade secrets, confidential
commercial information, or any other information, knowledge or
data of the Company or of any of its Affiliates which is not
generally known to the public and shall use his best efforts to
prevent the publication or disclosure by any other person of any
such secret, information, knowledge or data. All documents and
objects made, compiled, received, held or used by the Executive
while employed by the Company in connection with the business of
the Company shall be and remain the Company's property and shall
be delivered by the Executive to the Company upon the termination
of the Employment Period or at any earlier time requested by the
Company.
6. The Executive agrees that during the Employment
Period and for a period of two years after the termination of the
Employment Period (except for a termination without cause or
resignation upon a Change of Control pursuant to Section 4(d)
above), he will not directly or indirectly, whether or not for
compensation and whether or not as an employee, be engaged in or
have any financial interest in any of the entities set forth on
Exhibit A hereto or in any business competing with or which may
compete with the business of the Company (or with any business of
any Affiliate for which the Executive performed services
hereunder) within any state, region or locality in which the
Company or such Affiliate is then doing business or marketing its
products, as the business of the Company or such Affiliate may
then be constituted. For purposes of this Agreement, the
Executive shall be deemed to be engaged in or to have a financial
interest in such a business if he is an employee, officer,
director, or partner, of any person, partnership, corporation,
trust or other entity which is engaged in such a business, or if
he directly or indirectly performs services for such entity or if
he or any member of his immediate family beneficially owns an
equity interest, or interest convertible into equity, in any such
entity; provided, however, that the foregoing shall not prohibit
the Executive or a member of his immediate family from owning,
for the purpose of passive investment, less than 5% of any class
of securities of a publicly held corporation.
7. The Executive agrees that he shall not, for a
period of two years after the Employment Period, employ any
person who was employed by the Company or any of its Affiliates
or induce such person to accept employment other than with the
Company and its Affiliates.
8. The Executive hereby agrees that any and all
improvements, inventions, discoveries, formulae, processes,
methods, know-how, confidential data, trade secrets and other
proprietary information (collectively, "Work Product") within the
scope of any business of the Company or any Affiliate which the
Executive may conceive or make or have conceived or made during
his employment with the Company shall be and are the sole and
exclusive property of the Company, and that the Executive shall,
whenever requested to do so by the Company, at its expense,
execute and sign any and all applications, assignments or other
instruments and do all other things which the Company may deem
necessary or appropriate (i) in order to apply for, obtain,
maintain, enforce, or defend letters patent of the United States
or any foreign country for any Work Product, or (ii) in order to
assign, transfer, convey or otherwise make available to the
Company the sole and exclusive right, title and interest in and
to any Work Product.
9. The Company and the Executive each agree to waive
trial by jury in any action arising under or in connection with
this Agreement or the employment relationship between the Company
and the Executive.
10. Any notice or other communication required or
permitted under this Agreement shall be effective only if it is
in writing and delivered personally or sent by registered or
certified mail, postage prepaid, addressed as follows:
If to the Company:
Xxxxx Xxxxxx Corporation
P.O. Box 2090
000 Xxxxx 00
Xxxxxxxx, XX 00000-0000
Attention: President
If to the Executive:
Xx. Xxxx X. Xxxxxxxxxxx
Six November Trail
Xxxxxx, XX 00000
or to such other address as either party may designate by notice
to the other, and shall be deemed to have been given upon
receipt.
11. This Agreement constitutes the entire agreement
between the parties hereto with respect to the Executive's
employment by the Company, and supersedes and is in full
substitution for any and all prior understandings or agreements
with respect to the Executive's employment with the Company.
12. This Agreement may be amended only by an
instrument in writing signed by the parties hereto, and any
provision hereof may be waived only by an instrument in writing
signed by the party or parties against whom or which enforcement
of such waiver is sought. The failure of either party hereto at
any time to require the performance by the other party hereto of
any provision hereof shall in no way affect the full right to
require such performance at any time thereafter, nor shall the
waiver by either party hereto of a breach of any provision hereof
be taken or held to be a waiver of any succeeding breach of such
provision or a waiver of the provision itself or a waiver of any
other provision of this Agreement.
13. This Agreement is binding on and is for the
benefit of the parties hereto and their respective successors,
heirs, executors, administrators and other legal representatives.
Neither this Agreement nor any right or obligation hereunder may
be assigned by the Company (except to an Affiliate) or by the
Executive.
14. If any provision of this Agreement, or portion
thereof, is so broad, in scope or duration, so as to be
unenforceable, such provision or portion thereof shall be
interpreted to be only so broad as is enforceable.
15. a. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
b. Any judicial proceeding brought with respect
to this Agreement must be brought in any state or federal court
of competent jurisdiction located in the State of New York, and,
by execution and delivery of this Agreement, each party (i)
accepts, generally and unconditionally, the exclusive
jurisdiction of such courts and any related appellate courts, and
irrevocably agrees to be bound by any judgment rendered thereby
in connection with this Agreement and (ii) irrevocably waives any
objection it may now or hereafter have as to the venue of any
such suit, action or proceeding brought in such a court or that
such court is an inconvenient forum. THE PARTIES HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE BOTH
PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT.
16. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same instrument.
17. The Executive represents and warrants that he is
not a party to any agreement which would prohibit him from
entering into this Agreement or performing fully his obligations
hereunder.
18. The obligations of the Executive set forth in
paragraphs 5, 6, 7, 8 and 9 represent independent covenants by
which the Executive is and will remain bound notwithstanding any
breach by the Company, and shall survive the termination of this
Agreement.
19. The Executive recognizes that a breach or
threatened breach by him of his obligations under Sections 5, 6,
7 or 8 would cause irreparable injury to the Company, and the
Company shall be entitled to preliminary and permanent
injunctions enjoining him from violating Sections 5, 6, 7 or 8 in
addition to any other remedies which may be available.
IN WITNESS WHEREOF, the Company and the Executive have
executed this Agreement as of the date first written above.
XXXXX XXXXXX CORPORATION
By: /s/ W. Xxxxxxx Xxxxxxxx
Name: W. Xxxxxxx Xxxxxxxx
Title: President and CEO
/s/ Xxxx X. Xxxxxxxxxxx
Xxxx X. Xxxxxxxxxxx
