EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into and made effective April
19, 2000 by and between BMC Industries, Inc., its subsidiaries and divisions
("Company") and Xxxxxxxx X. Xxxxxx ("Employee").
WHEREAS, Company desires to employ Employee and Employee desires be employed by
the Company; and
WHEREAS, Employee and Company desire to formalize their relationship, and
provide for certain benefits and certain protections to Employee and Company
subject to and in accordance with this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements contained
herein and for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT AND TERM. Company agrees to employ Employee in the capacity of
Senior Vice-President and Chief Financial Officer, for a period of two years,
commencing on April 19, 2000 and continuing until April 19, 2002 (the "Agreement
Termination Date"), unless sooner terminated as provided in this Agreement.
Employee agrees to serve and remain in such employment in accordance with this
Agreement. Throughout the term of this Agreement, Employee shall devote her full
time and attention during normal business hours to the business and affairs of
Company, except for vacations, Company holidays or periods of illness or
incapacity.
This Agreement may be renewed on the Agreement Termination Date with
the mutual consent of the parties.
2. POSITION AND DUTIES. Employee shall serve full-time in the position of Senior
Vice-President and Chief Financial Officer, or such other position(s) as
designated by the Chief Executive Officer of the Company. Employee shall perform
such duties in this position as may be prescribed by Company management.
Employee agrees to devote her full-time business efforts, attention and energies
to the diligent performance of her duties on behalf of the Company, and will
not, during the term of her employment by the Company, engage in any activity or
accept employment, full or part-time, from any other person, firm, corporation,
governmental agency or other entity which, in the opinion of the Company, would
conflict with or detract from the capable performance of Employee's duties and
obligations to the Company. Employee further agrees to comply faithfully with
all policies established by Company.
3. COMPENSATION.
(a) BASE SALARY. As compensation for the services rendered
under this Agreement, Company agrees to pay Employee a base salary of
$225,000.00 per annum, less applicable deductions and withholdings as required
by law, subject to annual adjustment at the discretion of Company's Board of
Directors. Employee shall be paid a portion of her base salary
as frequently as similarly situated employees. Currently, similarly situated
employees are paid on a bi-weekly basis.
(b) OTHER WAGE BASED BENEFITS. During the term of this
Agreement, Employee shall be eligible for participation in Company's Executive
Perk and Flex Benefit Plans and the 2000 Management Incentive Plan (MIP)
(attached as Exhibit A to this Agreement) with a targeted bonus opportunity of
50% of base salary (pro-rated for Employee's term of employment in the year
2000) and a maximum opportunity of 75% of Employee's base compensation,
depending upon the financial performance of BMC. Employee shall also receive a
Non-Qualified Stock Option (NQSO) grant for 100,000 shares of BMC common stock,
effective on the first date of employment. The option exercise price will be the
average of the high and low trading price of BMC stock on the New York Stock
Exchange on your first date of employment. THIS OPTION WILL HAVE A THREE (3)
YEAR VESTING PERIOD FOR 50,000 SHARES AND A FIVE (5) YEAR VESTING PERIOD FOR THE
REMAINING 50,000 SHARES, with the first installment of each becoming exercisable
on the first anniversary of Employee's employment date. Under the vesting
schedule for these options, which is attached as Exhibit B to the Agreement,
partial year vesting is not allowed.
4. BENEFITS. During the term of this Agreement, Employee shall have the
right to participate in any group insurance and other fringe benefit plans which
are generally provided to its employees at the same or similar level, subject,
however, to the Employee's qualification for participation in such benefit plans
pursuant to the terms and conditions under which such benefit plans are offered.
5. EXPENSES. The Company agrees to reimburse Employee for ordinary and
necessary business expenses incurred by her in performing services for the
Company in accordance with established corporate policies as may be in effect
from time to time.
6. REPRESENTATION OF EMPLOYEE. Employee represents and warrants that
she is not party to or otherwise subject to or bound by the terms of any
contract, agreement or understanding that in any manner will limit or otherwise
affect her ability to perform her obligations under this Agreement.
7. TERMINATION OF EMPLOYMENT. This Agreement shall terminate on the
first to occur of the following events (the "Events of Termination"):
(a) The Agreement Termination Date;
(b) On the date of the Employee's death;
(c) On the date of Employee's total disability, subject to
Employee's right to Separation Pay Upon a Determination of
Total Disability as defined in paragraph 10 of this Agreement.
As used herein, the term "total disability" shall mean any
disability, whether caused by illness, injury or other
incapacity, which prevents Employee from fulfilling her
regular duties for a period of ninety days or more, despite
the availability of a reasonable accommodation;
(d) Company may terminate Employee for Cause, as defined in
paragraph 8 of this Agreement; or
(e) Company may terminate Employee without cause, subject to
Employee's right to Separation Pay or Change in Control Pay,
as described in paragraph 9 of this Agreement.
Employee's employment under this Agreement (but not Employee's rights and
obligations under Paragraph 11 of this Agreement), and all of Company's rights
and obligations under this Agreement (but not its rights and obligations under
Paragraph 11) shall terminate upon the termination of this Agreement.
8. TERMINATION FOR CAUSE. Company may discharge Employee and terminate
her employment immediately, without any prior notice, at any time, for Cause. As
used in this Employment Agreement, the term "Cause" shall include:
(a) any act of fraud or dishonesty by Employee;
(b) any continued act of insubordination or refusal by Employee to
perform assigned duties after Employee has been provided at
least ten (10) days notice in writing of what performance is
required;
(c) Employee's willful violation of any Company rule or policy; or
(d) Employee's willful breach of any promise or obligation under
this Agreement.
9. SEPARATION PAY. If Employee is terminated for Cause or voluntarily
resigns, she is not entitled to Separation Pay. If at any time prior to the
Agreement Termination Date, Employee's employment is terminated by Company OTHER
THAN (a) for Cause, (b) on account of Employee's death or total disability, or
(c) for reasons which invoke section 2 of the Change in Control Agreement
attached as Exhibit C, then Company shall pay Employee Separation Pay in an
amount equal to Employee's annual salary under this Agreement. This Separation
Pay shall be disbursed to Employee within sixty (60) days after Employee's
termination date. No Separation Pay shall be due to Employee or her estate in
the event of Employee's death. Employee shall not be entitled to receive both
Separation Pay and Change in Control Pay.
10. SEPARATION PAY UPON A DETERMINATION OF TOTAL DISABILITY. If Company
determines that Employee is totally disabled, as defined in Paragraph 7(c),
Company may terminate this Agreement. As Separation Pay upon such a
determination, Company shall pay Employee an amount equal to Employee's annual
salary under this Agreement. This Separation Pay shall be disbursed to Employee
within sixty (60) days after Company's termination of this Agreement in
accordance with the terms of this Paragraph 10.
11. CONFIDENTIALITY. Employee recognizes and acknowledges that due to
the nature of her employment and the position of trust that she will hold, she
will have special access to,
learn, be provided with, and in some cases, will prepare and create for the
Company, trade secrets and other confidential and proprietary information
relating to the Company's business, including, but not limited to financial
information, business plans, marketing information, business strategies,
methods, operations and procedures, correspondence, customer lists, special
customer requirements and methods of servicing the customers, and other
information concerning the Company's customers and customer contacts. Employee
acknowledges and agrees that such information is the exclusive property of the
Company, that it has been and will continue to be of central importance to the
business of the Company, and that the disclosure of it to, or use by, others
will cause the Company substantial and irreparable losses. Accordingly, Employee
will not, either during her employment or at any time after the termination of
her employment with the Company for any reason, use, reproduce or disclose any
trade secrets or other confidential or proprietary information relating to the
business of the Company or its customers which is not generally available to the
public, except as may be necessary in discharging her assigned duties as an
employee of the Company. Employee's confidentiality obligations under this are
in addition to, and not in lieu of, any confidentiality obligations that may
apply to Employee under any rule or policy of the Company, and any other
agreement, statute or common law.
12. COMPANY PROPERTY. All correspondence, records and other documents,
including all copies, which come into Employee's possession by, through, or in
the course of her employment with the Company, regardless of the source and
whether or not created by Employee, are the sole and exclusive property of the
Company, and immediately upon the termination of Employee's employment for any
reason, Employee shall return to the Company all such documents and other
property of the Company. Employee agrees that the Company may withhold any sums
otherwise due to Employee upon termination until Employee has satisfied all
obligations under this Paragraph.
13. REASONABLENESS OF RESTRICTIONS. Employee has carefully read and
considered the provisions of Paragraph 11 of this Agreement and, having done so,
agrees that the restrictions set forth in such paragraph are fair and reasonable
and are reasonably required for the protection of the interests of Company, its
directors, officers, and other employees.
14. RIGHT TO INJUNCTIVE RELIEF. Employee agrees that in the event of
any breach by Employee of Paragraph 11 of this Agreement, the Company shall be
entitled to immediate and permanent injunctive relief restraining said breach,
in addition to and not in lieu of any action for damages or any other legal,
equitable remedies available to the Company for said breach.
15. SEVERABILITY. This Agreement is intended to limit disclosure and
competition by Employee to the maximum extent permitted by law. If it shall be
finally determined by any court of competent jurisdiction ruling on this
Agreement that the scope or duration of any limitation contained in this
Agreement is too extensive to be legally enforceable, then the parties hereto
agree that the scope or duration of such limitation shall be deemed to be the
maximum scope or duration of such limitation shall be deemed to be the maximum
scope or duration that shall be determined by a court of competent jurisdiction
to be legally enforceable and Employee hereby consents to the enforcement of
such limitation as so modified.
16. APPLICABLE LAW. This Agreement shall be construed in accordance
with and governed by the substantive laws of the State of Minnesota (except with
respect to conflicts of law). The parties agree that all actions or proceedings
in any way, manner or respect, arising out of or from or related to this
Agreement shall be litigated in courts which have situs within the State of
Minnesota. The parties further consent to and submit to the jurisdiction of any
local, state or federal court located within Minnesota and each party hereby
waives any right it may have to transfer or change the venue of any litigation
brought against such party by the other in accordance with this Agreement.
17. BINDING EFFECT. The Agreement is binding upon and shall inure to
the benefit of the parties and their legal representatives, successors and
assigns.
17. COMPLETE AGREEMENT. This Agreement reflects the entire understanding of
the parties with respect to the subject matter hereof and may not be
changed or altered except by a writing signed by the parties hereto.
19. WAIVER. The waiver by either party of any breach of any provision
of this Agreement shall not be construed to be a waiver by such party of any
succeeding breach of such provision or a waiver by such party of any breach of
any other provision.
20. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall together constitute one and the same instrument. IN WITNESS
WHEREOF, the parties have duly executed this Agreement as of the date first
above written.
Dated: April 19, 2000 BMC INDUSTRIES, INC.
By: /s/Xxxx X. Xxxxx
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Its: Chairman and CEO
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Dated: April 19, 2000 XXXXXXXX X. XXXXXX
/s/Xxxxxxxx X. Xxxxxx
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