EXHIBIT 10.6
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EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement is made as of the 22nd day of December, 2000,
between Xxxxxx Corporation (the "Company"), and Xxxxxxx X. Xxxxxx ("Executive").
The parties agree as follows:
1. Employment and Duties. The Company employs the Executive as Executive
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Vice President and Chief Financial Officer and a member of the Board of
Directors of the Company. The Executive agrees to devote full time and attention
during normal business hours to the business of the Company and its subsidiaries
and affiliates and to perform duties normally and properly incident to his
position and such further duties as may be assigned to him by the Board of
Directors of the Company. The duties to be performed by the Executive under this
Agreement shall be primarily performed by him in the Richmond, Virginia
metropolitan area, provided, however, that the Executive shall travel to the
extent reasonably necessary to perform his duties hereunder. The Executive shall
not be required to reside or maintain a residence outside of the Richmond
metropolitan area.
2. Term. The Company employs the Executive and the Executive agrees to
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serve the Company for a term of one year from the date of this Agreement. The
term of this Agreement shall automatically be extended for additional terms of 1
year, unless either party notifies the other in writing at least 60 days before
the expiration of the term of this Agreement that it does not wish to extend the
term. If the Company notifies the Executive that it does not wish to extend the
term of this Agreement, the Company shall be deemed to have terminated
Executive's employment without cause and Executive shall be entitled to the
benefits specified in Paragraph 7 of this Agreement. If the Executive notifies
the Company that Executive does not wish to extend the term of this Agreement,
Executive shall be
deemed to have voluntarily left the employ of the Company and the Company's
obligations to the Executive under this Agreement shall terminate.
3. Salary. During the term of this Agreement, the Company shall pay the
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Executive a salary at a rate of not less than three hundred twenty thousand
dollars ($320,000) per year which sum shall be payable in bi-weekly
installments. The executive shall be entitled to participate in the Company's
bonus program and the Company agrees to review the Executive's salary no less
frequently than annually. In the event of an increase in salary or the payment
of a bonus, the other terms and conditions of this Agreement shall remain in
full force and effect. The salary in effect at any given time is sometimes
referred to in this Agreement as "Base Salary." There shall be withheld from all
amounts due the Executive such federal and state income taxes, FICA and other
amounts as may be required to be withheld under applicable law.
4. Other Benefits. During the term of this Agreement, the Executive
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shall be entitled to (i) participate in such employee benefit plans and programs
as are generally available to other officers of the Company who hold positions
of similar responsibility to those of Executive, (ii) reimbursement, in
accordance with policies and procedures established by the Company from time to
time, for all items of expense reasonably and necessarily incurred by Executive
on behalf of the Company, (iii) such holidays as are generally available to
employees of the Company, and (iv) five (5) weeks of annual vacation leave,
which shall be non-cumulative and not subject to compensation if not taken.
5. Termination by Death or Disability.
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(a) Should the Executive die during the term of employment, the Company
shall be obligated to pay any salary and benefits to which the Executive may be
entitled until the end
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of the bi-weekly payroll period in which the death occurs, and the Company shall
pay to the Executive's personal representatives amounts equal to and payable at
the same time as the installments of Base Salary theretofore regularly paid to
the Executive for a period of twelve months beginning as of the date of death.
(b) Should the executive be unable to perform substantially all duties of
employment for 90 consecutive days because of a physical or mental disability,
the Company shall then have the right to terminate the Executive's employment by
giving the Executive 30 days written notice. After the date of termination, the
Company shall pay to the Executive or the Executive's personal representatives
amounts equal to and payable at the same time as the installments of Base Salary
theretofore regularly paid to the Executive for a period of twelve months
beginning as of the date of termination.
The onset of a condition of disability under this Agreement shall be
determined by the Board of Directors on the basis of (i) a written opinion of a
licensed physician certified in his field of specialization and acceptable to
the Board, or (ii) the receipt of, or entitlement by the Executive to disability
benefits under any insurance policy or employee benefit plan provided or made
available by the Company or under Federal Social Security laws.
6. Termination for Cause. The Company, by action of its Board of
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Directors, may at any time elect to terminate its obligations under this
Agreement for "cause" and remove the Executive from employment. Termination for
cause shall be made upon 30 days written notice, and upon expiration of the 30-
day notice period, all obligations of the Company to the Executive under this
Agreement shall cease.
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For purposes of this Agreement "cause" shall be only the following:
(a) continued and deliberate neglect by the Executive, after receipt
of notice thereof, of employment duties other than as a result of Executive's
physical or mental disability;
(b) willful misconduct of the Executive in connection with the
performance of his duties, including by way of example but not limitation,
misappropriation of funds or property of the Company; securing or attempting to
secure personally any profit in connection with any transaction entered into on
behalf of the Company or violation of any code of conduct or standards of ethics
applicable to employees of the Company;
(c) conduct by the Executive which may result in material injury to
the reputation of the Company if the Executive were retained in his position
with the Company, including by way of example but not limitation, commission of
a felony, bankruptcy, insolvency or general assignment for the benefit of
creditors;
(d) active disloyalty such as aiding a competitor; or
(e) a breach by the Executive of paragraph 8 or 9 of this Agreement.
7. Other Termination.
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(a) If the Executive resigns or voluntarily leaves the employ of the
Company, the Company's obligations to the Executive under this Agreement shall
terminate and the Company shall have no further liability to the Executive under
this Agreement; provided, however, if Executive voluntarily leaves the employ of
the Company by virtue of the Company's failure to comply with any terms of this
Agreement, then the Executive shall be entitled to the identical compensation
and benefits set forth in Section 7 (b) hereof.
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(b) The Company, by action of its Board of Directors, may at any time
elect to terminate its obligations under this Agreement without cause and remove
the Executive from employment on 30 days' written notice. If the Company elects
to terminate Executive's employment without cause, then the Executive shall be
entitled to receive, subject to compliance by the Executive with the provisions
of Sections 8 and 9 of this Agreement, the compensation and benefits due under
this Agreement for a period of twenty-four (24) months from the date of
termination.
8. Confidential Information and Trade Secrets. As consideration for and
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to induce the employment of the Executive by the Company, the Executive agrees
that:
(a) Except to the extent such information is generally known to the
public or in the industry in which the Company and its subsidiaries and
corporate affiliates are engaged all information relating to or used in the
business and operations of the Company and its subsidiaries and corporate
affiliates (including, without limitation, marketing methods and procedures,
customer lists, lists of professionals referring customers to the Company and
its subsidiaries and corporate affiliates, sources of supplies and materials and
business systems and procedures), whether prepared, compiled, developed or
obtained by the Executive or by the Company or any of its subsidiaries or
corporate affiliates prior to or during the term of this Agreement, are and
shall be confidential information and trade secrets ("Confidential Information")
and the exclusive property of the Company, its subsidiaries and corporate
affiliates.
(b) All records of and materials relating to Confidential
Information, whether in written form or in a form produced or stored by any
electrical or mechanical means or process and whether prepared, compiled or
obtained by the Executive or by the Company or
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any of its subsidiaries or corporate affiliates prior to or during the term of
this Agreement, are and shall be the exclusive property of the Company or its
subsidiaries or corporate affiliates, as the case may be.
(c) Except in the regular course of his employment or as the Company
may expressly authorize or direct in writing, the Executive shall not, during or
after the term of this Agreement and his employment by the Company, copy,
reproduce, disclose or divulge to others, use or permit others to see any
Confidential Information or any records of or materials relating to any such
Confidential Information. The Executive further agrees that during the term of
this Agreement and his employment by the Company he shall not remove from the
custody or control of the Company or its subsidiaries or corporate affiliates
any records of or any materials relating to such Confidential Information and
that upon the termination of this Agreement he shall deliver the same to the
Company and its subsidiaries and corporate affiliates.
9. Covenants.
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As consideration for and to induce the employment of the Executive by
the Company, the Executive agrees that, except in the regular course of his
employment or as the Company may expressly authorize or direct in writing, the
Executive shall not, during the term of this Agreement and for a period of two
(2) years immediately following the termination of this Agreement, directly or
indirectly, either as an individual for his own account, as a partner or joint
venturer with any other person or entity, as an employee, consultant, advisor,
agent or representative of any other person or entity or as an officer, director
or shareholder of any corporation, (i) own, manage, operate, join, control or
participate in the ownership, management, operation or control of, or serve as
an employee,
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consultant, advisor, agent or representative of any corporation, association,
partnership, proprietorship or other business entity that is engaged in any
business activity, directly or indirectly, in competition with any of the
business operations or activities of the Company or any of its subsidiaries or
corporate affiliates, or (ii) employ or offer to employ or retain the services
of any officer, employee or agent then employed or retained by the Company or
any of its subsidiaries or corporate affiliates or induce, encourage or solicit
any such officer, employee or agent to leave the employment or service of the
Company or any of its subsidiaries or corporate affiliates. This provision shall
not, however, restrict the Executive from making any investments in any company
whose stock is listed on a national securities exchange or actively traded in
the over-the-counter market, so long as such investment does not give Executive
the right to control or influence the policy decisions of any business or
enterprise which is or might be directly or indirectly in competition with any
of the business operations or activities of the Company or any of its
subsidiaries or corporate affiliates.
10. Survival of Covenants and Remedies. The agreements made by the
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Executive in paragraphs 8 and 9 shall survive the termination of this Agreement
and the Executive's employment. Each such agreement by the Executive shall be
construed as an agreement independent of any other provision of this Agreement,
and the existence of any claim or cause of action by the Executive against the
Company shall not constitute a defense to the enforcement of the provisions of
paragraphs 8 or 9. The Executive acknowledges and agrees that the Company will
sustain irreparable injury in the event of a breach or threatened breach by the
Executive of the provisions of paragraphs 8 or 9 and that the Company does not
and will not have any adequate remedy at law for such breach or threatened
breach. Accordingly, the Executive agrees that if he breaches or threatens to
breach any such covenant or
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agreement, the Company shall be entitled to immediate injunctive relief. The
foregoing shall not, however, be deemed to limit the Company's remedies at law
or inequity for any such breach or threatened breach.
11. Notices. All notices, consents and other communications under this
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Agreement shall be in writing and shall be deemed to have been given, delivered
or made when delivered personally or when mailed by registered or certified
mail, postage prepaid and return receipt requested, addressed to the Company at
its principal office in Richmond, Virginia, and to the Executive at his
residence as shown upon the employment records of the Company, or to such other
address as either party may by notice specify to the other.
12. Modification. No provision of this Agreement, including any provision
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of this paragraph, may be modified, deleted or amended in any manner except by
an agreement in writing executed by Executive and the Company.
13. Benefit. All of the terms of this Agreement shall be binding upon,
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inure to the benefit of and be enforceable by the Company and its successors and
assigns and by the Executive and his heirs and personal representatives.
14. Construction. This Agreement is executed and delivered in the
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Commonwealth of Virginia and shall be construed and enforced in accordance with
the laws of such state.
15. Severability. The invalidity or unenforceability of any provision of
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this Agreement shall not affect the validity or enforceability of any other
provision.
In addition, if, at the time of enforcement of this Agreement, a court
holds that any restriction stated in this Agreement is unreasonable under the
circumstances then existing,
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the parties agree that the maximum restriction reasonable under such
circumstances shall be substituted for the stated restriction.
16. Headings. The underlined headings provided in this Agreement are for
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convenience only and shall not affect the interpretation of this Agreement.
17. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original.
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Executive
XXXXXX CORPORATION
By: ______________________________
Title: ______________________________
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