Exhibit 10.44
Xxxxxxx Technology Company, Inc.
00 Xxxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Tel: 000 000-0000
Fax: 000 000-0000
June 8, 2001
Xx. Xxxxx X. Xxxxxxx
00 Xxxxxxxx Xxx
Xxxxxxx, XX 00000
Dear Xx. Xxxxxxx:
This Agreement sets forth the terms of your employment with Xxxxxxx
Technology Company, Inc., a Delaware corporation (the "Company"), and it is
effective as of June 18, 2001, and if not extended or unless sooner terminated,
shall expire on June 18, 2004.
1. DUTIES. During the term of your employment hereunder, you shall be
employed as the Chief Financial Officer of the Company, and you shall direct and
manage the financial business, affairs and property of the Company subject to
the direction of the President of the Company. You shall also be a member of the
Xxxxxxx Leadership Team.
2. COMPENSATION. As compensation for your services during the term of
your employment hereunder:
A. Salary. You shall be paid a salary at the annual rate of two
hundred forty thousand dollars ($240,000) (hereinafter referred to as your "base
salary"), payable in appropriate installments to conform with regular payroll
dates for salaried personnel of the Company.
B. Reviews and Adjustments. On or about June 18, 2002 and each
succeeding June 18 during the term of your employment hereunder, your
performance shall be reviewed by the President of the Company and your
attainment of mutually agreed-upon objectives evaluated; your base salary for
the ensuing twelve (12) months commencing on such June 18 may be adjusted,
subject to approval by the Compensation Committee of the Board of Directors of
the Company, in accordance with your level of performance. In no case, however,
will any such adjustment to your salary ever be a negative amount unless you
expressly agree to such a reduction..
C. Incentive Compensation. During the term of your employment
hereunder, and at such other times subsequent thereto as are otherwise set forth
herein, you shall be paid annually, within three (3) months of the end of each
fiscal year, beginning with the fiscal year ending June 30, 2002, incentive
compensation in an amount determined for such fiscal year under the Company's
Executive and Key Person Cash Incentive Program (the "Incentive Program") as in
effect at that time.
D. Supplemental Retirement Benefit. On the first day of each month
that you are still performing services under the terms of this Agreement, the
Company shall accrue for your benefit a supplemental retirement benefit (the
"Supplemental Retirement Benefit") in the amount of five thousand sixty six
dollars ($5,066.00). The sum of all such monthly accruals of Supplemental
Retirement Benefit shall constitute the "Aggregate Supplemental Retirement
Benefit". The Aggregate Supplemental Retirement Benefit, to the extent vested,
is to be paid to you in equal monthly installments, over a ten (10) year period
beginning at such times as are set forth in this Agreement. Wherever so used in
this Agreement, the term "Monthly Supplemental Retirement Benefit" shall mean
the Aggregate Supplemental Retirement Benefit divided by one
2
hundred twenty (120) months. The Aggregate Supplemental Retirement Benefit will
vest, in each case assuming you are then employed by the Company, as follows: as
of June 18, 2002 it shall be vested to the extent of 20%, as of June 18, 2003 it
shall be vested to the extent of 40%, as of June 18, 2004 it shall be vested to
the extent of 60%, as of June 18, 2005 it shall be vested to the extent of 80%,
and as of June 18, 2006 it shall be vested to the extent of 100% so that as of
the latter date the full amount of the Aggregate Supplemental Retirement Benefit
shall be due and payable in the instances set forth elsewhere in this Agreement.
3. INSURANCE. During the term of your employment hereunder, the Company,
subject to your insurability, shall (i) pay the premiums on a contract or
contracts of life insurance on your life providing for an aggregate death
benefit of five hundred thousand dollars ($500,000), which contract or contracts
will be owned by you, your spouse or such other party as may be designated by
you; and (ii) purchase key person term life insurance on your life in the
aggregate amount of one million dollars ($1,000,000), which contract or
contracts will be owned by the Company.
4. REIMBURSEMENT OF EXPENSES. In addition to the compensation provided
for herein, the Company shall reimburse to you, or pay directly, in accordance
with the policies of the Company as in effect at the time, all reasonable
expenses incurred by you in connection with the business of the Company, and its
Subsidiaries (as defined in Section 5 of this Agreement) and affiliates,
including but not limited to business-class travel if overseas, reasonable
accommodations, and entertainment, subject to documentation in accordance with
the Company's policy.
5. EXTENT OF SERVICES.
3
A. In General. During the term of your employment hereunder you shall
devote your best and full-time efforts to the business and affairs of the
Company.
B. Limitation on Other Services. During the term of your employment
hereunder, you shall not undertake employment with, or participate in, the
conduct of the business affairs of, any other person, corporation, or entity,
except at the direction or with written approval of the Board of Directors of
the Company.
C. Personal Investments. Nothing herein shall preclude you from
having, making, or managing personal investments which do not involve your
active participation in the affairs of the entities in which you so invest, but,
unless approved in writing by the Board of Directors of the Company, during the
term of your employment hereunder, you shall not have more than a one percent
(1%) ownership interest in any entity which is directly competitive with any
business conducted by the Company at that time. The phrase "conducted by the
Company" as used in this Xxxxxxxxx 0X and in Paragraph 12 hereof shall mean the
business conducted by the Company or by any corporation or other entity in which
the Company owns fifty percent (50%) or more of the stock or equity interests
(either voting or non-voting) in such other entity (a "Subsidiary").
6. LOCATION. Your office shall be located at the Company's current
headquarters located in Shelton, Connecticut. This location may change in the
future. Your duties hereunder shall be performed for the Company worldwide.
7. VACATION; OTHER BENEFITS.
A. Vacation. During the term of your employment hereunder, you shall
be entitled to a vacation or vacations, with pay, in accordance with the
Company's vacation policy
4
as in effect at the time. Your yearly vacation accrual will be three (3) weeks
of annual vacation per year in year one and all subsequent years until your time
with the Company eventually triggers a larger annual accrual beyond three (3)
weeks per year. You may accumulate up to twelve (12) weeks vacation, but not
more than three (3) weeks from any single prior year. Any such accumulated
vacation may be used in any subsequent year or years (but no more than two (2)
weeks of such accumulated vacation in any one year) in addition to the vacation
to which you are entitled for each such year.
B. The Company's Benefit Plans. During the term of your employment
hereunder, you shall be eligible for inclusion, to the extent permitted by law,
as a full-time employee of the Company, in any and all (i) pension, profit
sharing, savings, and other retirement plans and programs as in effect at the
time, (ii) life and health (medical, dental, hospitalization, short-term and
long-term disability) insurance plans and programs as in effect at the time,
(iii) stock option and stock purchase plans and programs as in effect at the
time, (iv) accidental death and dismemberment protection plans and programs as
in effect at the time, (v) travel accident insurance plans and programs as in
effect at the time, and (vi) other plans and programs at the time sponsored by
the Company or any Subsidiary for employees or executives generally as in effect
at the time, including any and all plans and programs that supplement any or all
of the foregoing types of plans or programs.
C. Automobile. During the term of your employment hereunder, the
Company shall provide an automobile for your use pursuant to the Company's
written policy on company autos as in effect at that time.
8. TERMINATION OF EMPLOYMENT. In the event your employment is terminated
for any of the reasons set forth under this Paragraph 8, the Company shall pay
to you
5
or your legal representative, estate or heirs, as the case may be, the following
amounts, which are in addition to the amounts stipulated under any subparagraph
of this Paragraph 8:
(i) A single lump sum payment, no later than the last day of your
employment, of:
(a) Any accrued but unpaid salary set forth in Xxxxxxxxx 0X
(xx xxxxxxxx xx Xxxxxxxxx 0X) hereof, including salary in respect
of any accrued and accumulated vacation, due to you at the date
of such termination; and
(b) Any amounts owing, but not yet paid, pursuant to
Paragraph 4 hereof.
(ii) Any accrued but unpaid incentive compensation as set forth
in Paragraph 2C hereof due to you at the date of such termination for
the fiscal year ending on or immediately prior to the date of such
termination which shall be paid within three (3) months of the end of
such fiscal year.
A. Termination by the Company Without Cause. The Company may,
without cause, terminate your employment hereunder at any time upon ten (10) or
more days' written notice to you. In the event your employment is terminated
under this Paragraph 8A, the Company shall pay to you the following:
(i) A single lump sum payment, not later than the last day of
your employment, of severance pay in an amount equal to your then
current annual base salary as defined in Xxxxxxxxx 0X (xx xxxxxxxx xx
Xxxxxxxxx 0X) hereof;
(ii) A single lump sum payment of any incentive compensation as
set forth in Paragraph 2C hereof earned in the fiscal year of the
termination of your employment, which incentive compensation shall be
determined on the basis of the Company's
6
operations through June 30 of such fiscal year, and shall be pro-rated
through the last day of your employment, and shall be paid within three
(3) months of such June 30;
(iii) To the extent vested, the Monthly Supplemental Retirement
Benefit with the first payment beginning on the first day of the month
immediately succeeding the last day of employment;
(iv) Continuation of medical benefits for a period of twelve (12)
months; and
(v) Executive outplacement services for a period of six (6)
months.
The Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
provided in Paragraph 11 and Paragraph 12 hereof.
B. Termination by the Company With Cause. The Company may for
cause terminate your employment hereunder at any time by written notice to you.
In the event your employment is terminated under this Paragraph 8B, you shall
forfeit the incentive compensation set forth in Xxxxxxxxx 0X hereof for the
fiscal year in which such termination or resignation occurs. In the event your
employment is terminated under this paragraph 8B, the Company shall pay to you,
to the extent vested, the Monthly Supplemental Retirement Benefit as set forth
in Paragraph 2D hereof with the first payment beginning on the first day of the
month immediately succeeding the month in which you attain the age of 55. The
Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
provided in Paragraph 11 and Paragraph 12 hereof. For purposes of this
Agreement, the term "cause" shall mean (1) a failure by you to remedy, within
ten (10) days of the Company's written notice to you, either (a) a continuing
neglect in the performance
7
of your duties under this Agreement, or (b) any action taken by you that
seriously prejudices the interests of the Company, or (2) your conviction of a
felony.
C. Termination by Mutual Consent. You may terminate your
employment hereunder at any time with the written consent of the Company. In the
event your employment is terminated pursuant to this Xxxxxxxxx 0X, the Company
shall pay to you the following:
(i) A single lump sum payment, of any incentive compensation set
forth in paragraph 2C hereof earned in the fiscal year of the
termination of your employment, which incentive compensation shall be
determined on the basis of the Company's operations through June 30 of
such fiscal year, and shall be pro-rated through the last day of your
employment, and shall be paid within three (3) months of such June 30;
and
(ii) to the extent vested, the Monthly Supplemental Retirement
Benefit as set forth in Paragraph 2D hereof with the first monthly
payment beginning on the first day of the month immediately succeeding
the last day of employment.
The Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
provided in Paragraph 11 and Paragraph 12 hereof.
D. Disability. If you should suffer a Permanent Disability at any
time, the Company may terminate your employment hereunder upon ten (10) or more
days' prior written notice to you. For purposes of this Agreement, a "Permanent
Disability" shall be deemed to have occurred only when you are qualified for
benefits under the Company's Long Term Disability Insurance Policy. In the event
of the termination of your employment hereunder by reason of Permanent
Disability, the Company shall pay to you or your legal representative:
8
(i) In conformity with regular payroll dates for salaried
personnel of the Company, an amount equal to fifty percent (50%) of the
base salary you were receiving at the date of such termination under
Paragraph 2A hereof (as adjusted by Paragraph 2B hereof), payable until
you attain the age of 65 or die, whichever occurs first; provided,
however, that the amount payable under this Paragraph 8D(i) shall be
reduced to the extent of any payments made to you through any
Company-sponsored group long term disability insurance policy (the
"Supplemental LTD Policy") where the premiums for said Supplemental LTD
Policy have either been paid by the Company or reimbursed to you by the
Company.
(ii) Any incentive compensation set forth in Paragraph 2C hereof
earned in the fiscal year in which the termination of your employment
occurs, which incentive compensation shall be determined on the basis of
the Company's operations through June 30 of such fiscal year, and shall
be pro-rated through the last day of your employment, and shall be paid
within three (3) months of such June 30;
(iii) Upon your attainment of age 65 or your death, whichever
occurs first, to the extent vested, the Monthly Supplemental Retirement
Benefit as set forth in Paragraph 2D hereof with the first monthly
payment beginning on the first day of the month immediately succeeding
the month in which you shall have attained the age of 65 or died.
The Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
provided in Paragraph 11 and Paragraph 12 hereof.
9
E. Termination by Death. In the event of the termination by your
employment by reason of death, at any time, the Company shall pay to your legal
representative, estate or heirs the following:
(i) Any incentive compensation set forth in Paragraph 2C hereof
earned in the fiscal year in which the termination of your employment
occurs, which incentive compensation shall be determined on the basis of
the Company's operations through June 30 of such fiscal year, and shall
be pro-rated through the last day of your employment, and shall be paid
within three (3) months of such June 30;
(ii) To the extent vested, the Monthly Supplemental Retirement
Benefit as set forth in Paragraph 2D hereof with the first monthly
payment beginning on the first day of the month immediately succeeding
the last day of your employment.
The Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
provided in Paragraph 11 and Paragraph 12 hereof.
F. Termination Upon Expiration of Agreement. If not previously
terminated, this Agreement and your employment with the Company shall be
automatically extended for additional three-year periods, unless and until
either party notifies the other, in writing, one year prior to the expiration of
the then-current term of this Agreement. After the expiration of this Agreement,
the Company shall pay to you the Monthly Supplemental Retirement Benefit as set
forth in Paragraph 2D hereof, with the first monthly payment beginning on the
first day of the month immediately succeeding the month in which you shall have
attained the age of 55.
10
The Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
provided in Paragraph 11 and Paragraph 12 hereof.
G. Events. If any of the following described events occurs during
the term of your employment hereunder, you may terminate your employment
hereunder by written notice to the Company either prior to, or not more than six
(6) months after the happening of such event. In such event, your employment
hereunder will be terminated effective as of the later of ten (10) days after
the notice or ten (10) days after the event, and the Company shall make to you
the same payments that the Company would have been obligated to make to you
under Paragraph 8A hereof if the Company had terminated your employment
hereunder effective on such date. The events, the occurrence of which shall
permit you to terminate your employment hereunder under this Paragraph 8G, are
as follows:
(i) Any merger or consolidation by the Company with or into any
other entity or any sale by the Company of substantially all of its
assets; provided, however, that such event shall not be deemed to have
occurred under this clause if consummation of the transaction would
result in at least fifty (50%) percent of the total voting power
represented by the voting securities of the Company outstanding
immediately after such transaction being beneficially owned by holders
of outstanding voting securities of the Company immediately prior to the
transaction.
(ii) Any change of a majority of the directors of the Company
occurring within any thirteen (13) month period.
(iii) The adoption by the Company of any plan of liquidation
providing for the distribution of all or substantially all of its
assets.
11
(iv) A material diminution in your duties, or the assignment to
you of duties that are materially inconsistent with your duties or that
materially impair your ability to function as the Chief Financial
Officer of the Company if such diminution or assignment has not been
cured within thirty (30) days after written notice thereof has been
given by you to the Company.
9. SOURCE OF PAYMENTS. All payments provided for hereunder shall be paid
from the general funds of the Company. The Company may, but shall not be
required to, make any investment or investments whatsoever, including the
purchase of a life insurance contract or contracts on your life, to provide it
with funds to satisfy its obligations hereunder; provided, however, that neither
you nor your beneficiary or beneficiaries, nor any other person, shall have any
right, title, or interest whatsoever in or to any such investment or contracts.
If the Company shall elect to purchase a life insurance contract or contracts on
your life to provide the Company with funds to satisfy its obligations
hereunder, the Company shall at all times be the sole and complete owner and
beneficiary of such contract or contracts, and shall have the unrestricted right
to use all amounts and to exercise all options and privileges thereunder without
the knowledge or consent of you, your beneficiary or beneficiaries, or any other
person, it being expressly agreed that neither you, any such beneficiary or
beneficiaries, nor any other person shall have any right, title, or interest
whatsoever in or to any such contract or contracts unless expressly provided
otherwise in this Agreement.
10. ENFORCEMENT OF RIGHTS. Nothing in this Agreement, and no action
taken pursuant to its terms, shall create or be construed to create a trust or
escrow account of any kind, or a fiduciary relationship between the Company and
you, your beneficiary or beneficiaries, or any other person. You, your
beneficiary or beneficiaries, and any other person or persons
12
claiming a right to any payments or interests hereunder shall rely solely on the
unsecured promise of the Company, and nothing herein shall be construed to give
you, your beneficiary or beneficiaries, or any other person or persons, any
right, title, interest, or claim in or to any specific asset, fund, reserve,
account, or property of any kind whatsoever owned by the Company or in which it
may have any right, title, or interest now or in the future, but you or your
beneficiary or beneficiaries shall have the right to enforce a claim for
benefits hereunder against the Company in the same manner as any unsecured
creditor.
11. INVENTIONS AND CONFIDENTIAL INFORMATION. So long as you shall be
employed by the Company, you agree promptly to make known to the Company the
existence of any and all creations, inventions, discoveries, and improvements
made or conceived by you, either solely or jointly with others, during the term
of this Agreement and for three (3) years thereafter, and to assign to the
Company the full exclusive right to any and all such creations, inventions,
discoveries, and improvements relating to any subject matter with which the
Company is now or shall become concerned, or relating to any other subject
matter if made with the use of the Company's time, materials, or facilities. To
the fullest extent permitted by law, any and all of the foregoing creations,
inventions, discoveries and improvements shall be considered as
"work-made-for-hire" and the Company shall be the owner thereof. You further
agree, without charge to the Company but at its expense, if requested to do so
by the Company, to execute, acknowledge, and deliver all papers, including
applications or assignments for patents, trademarks, and copyrights relating
thereto, as may be considered by the Company to be necessary or desirable to
obtain or assign to the Company any and all patents, trademarks, or copyrights
for any and all such creations, inventions, discoveries, and improvements in any
and all countries, and to vest title thereto in the Company in all such
creations, inventions,
13
discoveries, and improvements as indicated above conceived during your
employment by the Company, and for three (3) years thereafter. You further agree
that you will not disclose to any third person any trade secrets or proprietary
information of the Company, or use any trade secrets or proprietary information
of the Company in any manner, except in the pursuit of your duties as an
employee of the Company, and that you will return to the Company all materials
(whether originals or copies) containing any such trade secrets or proprietary
information (in whatever medium) on termination of your employment by the
Company. The obligations set forth in this Paragraph 11 shall survive the
termination of your employment hereunder.
12. RESTRICTIVE COVENANT. For a period of three (3) years after the
termination of your employment by the Company, you shall not, in any
geographical location in which there is at that time business conducted by the
Company which was conducted by the Company at the date of such termination,
directly or indirectly, own, manage, operate, control, be employed by,
participate in, or be connected in any manner with, the ownership, management,
operation, or control of, any business similar to or competitive with such
business conducted by the Company without the written consent of the Company;
provided, however, that you may have an ownership interest of up to one percent
(1%) in any entity, notwithstanding that such entity is directly competitive
with any business conducted by the Company at the date of such termination.
13. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement, or the breach or asserted breach thereof, shall be settled by
arbitration to be held in New York, New York in accordance with the rules then
obtaining of the American Arbitration Association, and the judgment upon the
award rendered may be entered in any court having
14
jurisdiction thereof. The arbitrator shall determine which party shall bear the
costs of such arbitration, including attorneys' fees.
14. NON-ASSIGNABILITY. Your rights and benefits hereunder are personal
to you, and shall not be alienated, voluntarily or involuntarily, assigned or
transferred.
15. BINDING EFFECT. This Agreement shall be binding upon the parties
hereto, and their respective assigns, successors, executors, administrators, and
heirs. In the event the Company becomes a party to any merger, consolidation, or
reorganization, this Agreement shall remain in full force and effect as an
obligation of the Company or its successors in interest. None of the payments
provided for by this Agreement shall be subject to seizure for payment of any
debts or judgments against you or your beneficiary or beneficiaries, nor shall
you or any such beneficiary or beneficiaries have any right to transfer or
encumber any right or benefit hereunder; provided, however, that the
undistributed portion of the Aggregate Supplemental Retirement Benefit shall at
all times be subject to set-off by the Company for debts owed by you to the
Company.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement
relating to your employment by the Company. It may only be changed by written
agreement signed by the party against whom enforcement of any waiver, change,
modification, extension, deletion, or revocation is sought.
17. NOTICES. All notices and communications hereunder shall be in
writing, sent by certified or registered mail, return receipt requested, postage
prepaid; by facsimile transmission, time and date of receipt noted thereon; or
by hand-delivery properly receipted. The actual date of receipt as shown by the
receipt therefor shall determine the time at which notice was given. All
payments required hereunder by the Company to you shall be sent postage prepaid,
or, at
15
your election, shall be transferred to you electronically to such bank as you
designate in writing to the Company, including designation of the applicable
electronic address. The foregoing items (other than any electronic transfer to
you) shall be addressed as follows (or to such other address as the Company and
you may designate in writing from time to time):
To you: To the Company:
------- ---------------
Xxxxx X. Xxxxxxx Xxxxxxx Technology Company, Inc.
00 Xxxxxxxx Xxx 00 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000-0000
18. LAW TO GOVERN. This Agreement shall be governed by, and construed
and enforced according to, the domestic laws of the State of Connecticut without
giving effect to the principles of conflict of laws.
Very truly yours,
XXXXXXX TECHNOLOGY COMPANY, INC.
By: ________________________________
Xxxx X. Xxxxx
Its Chief Operating Officer
Duly Authorized
AGREED TO AND ACCEPTED:
----------------------------
Xxxxx X. Xxxxxxx
16
