EXHIBIT 10.32
CONFIDENTIAL
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EXECUTION COPY
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into on
August 1, 1995, by and between Cardkey Systems, Inc., a Delaware corporation
with its principal executive offices in Simi Valley, California (the "Company"),
and Xxxxxxx X. Xxxxxxx, an individual currently residing in Los Angeles,
California ("Employee").
Recitals
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A. Employee was previously employed as Vice President-Systems Product
Group of a company, most of whose business was acquired by the Company.
Employee has accumulated experience and knowledge of value to the Company.
B. The Company desires to provide for the employment of Employee in such a
manner as will reinforce and encourage the highest attention and dedication to
the Company of Employee as a member of the Company's management, in the best
interest of the Company and its shareholder.
C. Employee is willing to serve the Company on the terms and conditions
herein provided.
Terms and Conditions
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In consideration of the covenants and agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ Employee, and Employee shall
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serve the Company, on the terms and conditions set forth herein.
2. Term. Subject to the terms and conditions herein, the employment of
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Employee by the Company as provided in Section 1 will be for a term commencing
on the date hereof and expiring on July 31, 1997.
3. Position and Duties. The Company shall engage Employee, and Employee
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shall serve, as President and Chief Operating Officer of the Company or in a
comparable position with the Company with such duties as may be assigned to
Employee from time to time by the Board of Directors (the "Board") of the
Company. Employee shall devote substantially all Employee's
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working time and efforts to the business and affairs of the Company. The
location of employment shall be as determined by the Company from time to time.
Should a relocation be necessary, the Company would provide reimbursement for
move related expenses in accordance with Company policy.
4. Compensation. During the term of Employee's employment hereunder, the
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Company shall pay Employee for Employee's services an annual base salary of not
less than $155,000 per annum, payable in equal bi-weekly installments on normal
payroll dates. Additionally, Employee shall be provided with a $1,000 per month
car allowance. The Company shall review the base salary of Employee at least
once a year and if the Company, in its sole and absolute discretion, deems an
adjustment in the base salary is appropriate for any reason whatsoever
(including, but not limited to, a change of Employee's duties), the adjustment
will be effective on the date designated by the Company and be evidenced by
appropriate entries on the payroll records of the Company. All applicable taxes
on total compensation shall be withheld in accordance with applicable taxation
guidelines.
The Company shall evaluate Employee's contribution to the overall
performance of the Company and shall pay such bonus to Employee as the Company,
in its sole and absolute discretion, shall deem appropriate in light of such
evaluation. For the period August 1, 1995, to December 31, 1995, Employee is
eligible to receive a discretionary bonus of up to $23,250 based upon the
achievement of various pre-determined performance goals.
5. Expenses and Services. During the term of Employee's employment
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hereunder, Employee shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by Employee by reason of Employee's employment,
provided that such expenses are incurred and accounted for in accordance with
the policies and procedures established by the Company and in effect when the
expenses are incurred. The Company shall furnish Employee with office space,
secretarial assistance, office supplies, office equipment and such other
facilities and services as are suitable to Employee's position and adequate for
the performance of his duties.
6. Confidential Information. Employee recognizes and acknowledges that
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Employee will have access to confidential information of the Company, and its
Affiliates, including, without limitation, customer information, lists of
suppliers and costs, information concerning the business and operations of the
Company and its Affiliates, and proprietary data, information, concepts and
ideas (whether or not patentable or copyrightable) relating to the business of
the Company and its Affiliates, as applicable. Employee agrees not to disclose
such confidential information, except as may be necessary in the performance of
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Employee's duties, to any person, nor use such confidential information in any
way, either during the term of Employee's employment or thereafter unless
Employee has received the written consent of the Company, or its Affiliates, as
applicable, or unless such confidential information becomes public knowledge
through no wrongful act of Employee. Upon termination of Employee's employment
for any reason, Employee shall promptly deliver to the Company all drawings,
manuals, letters, notebooks, customer lists, documents, records, equipment,
files, computer disks or tapes, reports or any other materials relating to the
business of the Company or its Affiliates (and all copies) that are in
Employee's possession or under Employee's control. Additionally, the parties
hereby acknowledge that Employee has executed a Confidentiality and Invention
Agreement dated on or about August 1, 1995 (the "Assignment of Inventions
Agreement").
7. Rights under Certain Plans. During the term of Employee's employment
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hereunder, Employee will be entitled to participate in the insurance and
employee benefit plans and programs maintained by the Company or its Affiliates
applicable to similarly situated officer employees on the same basis as such
other officer employees of the Company, subject only to the possible
substitution by or on behalf of the Company or its Affiliates of other plans or
programs providing substantially similar or increased benefits for Employee.
Employee will also be entitled to reasonable vacation time, with no reduction in
compensation, in keeping with Employee's duties and responsibilities to the
Company.
8. Early Termination. Employee's employment hereunder may be terminated
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without any breach of this Agreement only under the following circumstances:
(A) Employee's employment hereunder will terminate upon Employee's
death;
(B) The Company may terminate Employee's employment hereunder for
Cause. For purposes of this Agreement, the Company shall have "Cause" to
terminate Employee's employment hereunder upon (1) the willful and
continued failure by Employee to substantially perform his duties hereunder
(other than any such failure resulting from Employee's incapacity due to
physical or mental illness), after written demand for substantial
performance is delivered by the Company that specifically identifies the
manner in which the Company believes Employee has not substantially
performed his duties; or (2) the willful engaging by Employee in misconduct
that is materially injurious to the Company or its Affiliates; or (3) the
conviction of Employee of any felony or crime of moral turpitude. For
purposes of this subsection (B), no act, or
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failure to act, on Employee's part shall be considered "willful" unless
done, or omitted to be done, by him not in good faith and without
reasonable belief that his action or omission was in the best interest of
the Company. Notwithstanding the foregoing, Employee shall not be deemed
to have been terminated for Cause without (a) reasonable written notice to
Employee, setting forth the reasons for the Company's intention to
terminate for Cause; (b) an opportunity for Employee, together with his
counsel, to be heard before the Board (or an authorized representative
thereof); and (c) delivery to Employee of a written Notice of Termination
as defined in subsection (D) hereof from the Board finding that, in the
good faith opinion of the Board, Employee was guilty of conduct set forth
above in clause (1), (2) or (3) of this subsection (B), and specifying the
particulars thereof in detail.
(C) Employee may terminate Employee's employment hereunder (1) for
Good Reason or (2) if Employee's health should become impaired to an extent
that makes Employee's continued performance of Employee's duties hereunder
hazardous to Employee's physical or mental health or Employee's life,
provided that Employee shall have furnished the Company with a written
statement from a qualified doctor to such effect and provided, further,
that, at the Company's request, Employee shall submit to an examination by
a doctor selected by the Company and such doctor shall have concurred with
the conclusion of Employee's doctor.
For purposes of this Agreement, "Good Reason" shall mean (a) a failure
by the Company to comply with any material provision of this Agreement that
has not been cured within twenty days after notice of such noncompliance
has been given by Employee to the Company; or (b) any purported termination
of Employee's employment that is not effected pursuant to a Notice of
Termination satisfying the requirements of subsection (D) hereof (and for
purposes of this Agreement no such purported termination shall be
effective).
(D) Any termination of Employee's employment by the Company or by
Employee (other than termination pursuant to subsection (A) above) shall be
communicated by written Notice of Termination to the other party hereto.
For purposes of this Agreement, a "Notice of Termination" shall mean a
notice that shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of Employee's
employment under the provision so indicated.
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(E) "Date of Termination" shall mean (1) if Employee's employment is
terminated by Employee's death, the date of Employee's death; and (2) if
Employee's employment is terminated for any other reason, the date
specified in the Notice of Termination.
9. Compensation upon Termination. Upon termination of Employee's
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employment hereunder, Employee shall be paid as follows:
(A) If Employee's employment is terminated by Employee's death, the
Company shall continue to pay Employee's semi-monthly base salary to
Employee's designated beneficiaries, or if Employee leaves no designated
beneficiaries, to Employee's estate for a period of one year from the date
of termination.
(B) If Employee's employment shall be terminated for Cause, the
Company shall pay Employee Employee's bi-weekly base salary earned through
the Date of Termination at the rate in effect at the time Notice of
Termination is given and the Company shall have no further obligations to
Employee under this Agreement.
(C) If (1) in breach of this Agreement, the Company shall terminate
Employee's employment other than pursuant to Section 8(B) hereof (it being
understood that a purported termination pursuant to Section 8(B) hereof
that is disputed and finally determined not to have been proper shall be a
termination by the Company in breach of this Agreement); or (2) Employee
shall terminate Employee's employment for Good Reason, then the Company
shall continue to pay Employee Employee's bi-weekly salary through July 31,
1997.
(D) If Employee shall terminate Employee's employment under clause (2)
of Section 8(C) or by resignation in breach of this Agreement, the Company
shall pay Employee Employee's full base salary through the Date of
Termination at the rate in effect on the date that Notice of Termination is
received by the Company.
Employee shall not be required to mitigate the amount of any payment
provided for in Section 9(C) by seeking other employment or otherwise. If
however, Employee commences new employment while Employee is being paid by the
Company, the obligation to make the payments described in Section 9(C) shall be
subject to offset, in whole or in part, of an amount equal to the compensation
paid to or earned by Employee from any new employment undertaken by Employee
following Employee's termination of employment with the Company through July 31,
1997.
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Should Employee violate any provision of Section 10 hereof or violate any
provision of, or any agreement referred to in, Section 6 of this Agreement, then
the Company's obligation to make payments to Employee pursuant to Section 9 and
provide the benefits described in the following paragraph shall terminate
effective as of the date of commencement of such violation. At any such time
when Employee shall no longer be in the employ of the Company, any successor in
interest to the Company or any of their respective Affiliates, Employee shall be
entitled to receive as of the date of such termination, subject to the terms and
conditions of any applicable insurance or employee benefit plan, payments in
satisfaction of any and all other wages, benefits, or other remunerations which
shall then be payable to, or vested on behalf of, Employee.
During the term of this Agreement, Employee shall give the Company
immediate notice of any change of address.
10. Noncompetition. Employee agrees and covenants:
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(A) That during Employee's employment with the Company Employee will
not directly or indirectly (i) engage in any employment, business, or
activity that is in any way competitive with the business or proposed
business of the Company or any Affiliate, or (ii) assist any other person
or organization in competing with the Company or any Affiliate or in
preparing to engage in competition with the business or proposed business
of the Company or any Affiliate. Direct competition shall include, but not
be limited to, the design, development, production, promotion or sale of
products, software or services competitive with those of the Company. The
provisions of this paragraph shall apply both during normal working hours
and at all other times including, but not limited to, nights, weekends and
vacation time, while Employee is employed by the Company.
(B) That, during the term provided for in Section 2 and for a period
of 18 months after Employee ceases to be employed by the Company, Employee
will not directly or indirectly solicit to conduct any competitive business
with, or conduct any competitive business with, any (i) then-current
customer of the Company or (ii) any person that has been a customer of the
Company within the 12 months prior to the time of Employee's separation
from employment. The phrase "competitive business" means the line(s) of
business(es) conducted by the Company or any Affiliate.
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(C) That, during the term provided for in Section 2 and for a period
of 18 months after Employee ceases to be employed by the Company, Employee
shall not directly or indirectly solicit to hire any employee of the
Company or any Affiliate as an employee or agent of, or consultant to, any
business enterprise that Employee is associated with.
(D) Each non-competition covenant of Employee contained in the
preceding provisions of this Section 10 (the "non-competition covenant")
shall be construed as an agreement independent of any other provision of
this Agreement and the existence of any claim or cause of action of
Employee against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company
of such non-competition covenant.
(E) Although the Company and Employee have in good faith used their
best efforts to make each non-competition covenant reasonable in both scope
and in duration, and it is not anticipated, nor is it intended, by either
party to this Agreement that any court or other tribunal having
jurisdiction will find it necessary to reform any non-competition covenant
to make it reasonable in both scope and in duration, or otherwise, the
Company and Employee understand and agree that if a court or other tribunal
having jurisdiction determines it necessary to reform any non-competition
covenant in order to make it reasonable in either scope or duration, or
otherwise, damages, if any, for a breach of the non-competition covenant,
as so reformed, will be deemed to accrue to the Company or an Affiliate, as
applicable, as and from the date of such a breach only and so far as the
damages for such breach related to an action which accrued within the scope
and duration as so reformed.
11. Affiliate Defined. The term "Affiliate" as used in this Agreement
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means any individual, corporation, unincorporated organization, trust or other
form of entity controlling, controlled by or under common control with the
Company. For purposes of this definition, "control" (including "controlled by"
and "under common control with") means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such individual, corporation, unincorporated organization, trust or other form
of entity, whether through the ownership of voting securities or otherwise.
12. Waiver. No waiver of any provision of this Agreement shall be
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deemed, or shall constitute, a waiver of any other
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provision, whether or not similar, nor shall any waiver constitute a waiver of
any continuing or succeeding breach of such provision, a waiver of the provision
itself, or a waiver of any right under this Agreement. No waiver shall be
binding unless executed in writing by the party making the waiver.
13. Limitation of Rights. Nothing in this Agreement, except as
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specifically stated herein, is intended to confer any rights or remedies under
or by reason of this Agreement on any persons other than the parties to it and
their respective permitted successors and assigns and other legal
representatives, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over against any party to this Agreement.
14. Remedies. Employee hereby agrees that a violation of any provision
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of Section 6 or 10 or any agreement referred to in Section 6 would cause
irreparable injury to the Company or its Affiliates for which it would have no
adequate remedy at law. Accordingly, in the event of any such violation, the
Company shall be entitled to preliminary and other injunctive relief. Any such
injunctive relief shall be in addition to any other remedies to which the
Company or its Affiliates may be entitled at law or in equity, or otherwise.
15. Notice. Any consent, notice, demand or other communication required
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or permitted hereby must be in writing to be effective and shall be deemed to
have been received on the date delivered, if personally delivered, or five days
following the date the same is deposited in the United States mail, postage
prepaid, certified return receipt requested, addressed to the applicable party
at the address for such party set forth below or at such other address as such
party may designate by like notice:
Cardkey Systems, Inc.
c/o Amtech Corporation
Dominion Plaza
00000 Xxxxxxx Xxxx, X-000
Xxxxxx, Xxxxx 00000
Attn: General Counsel
Employee:
Xxxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
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16. Inconsistent Obligations. Employee represents and warrants that
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Employee has not previously assumed any obligations inconsistent with those of
this Agreement.
17. Entirety and Amendments. This instrument and the instruments referred
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to herein embody the entire agreement between the parties relating to the
subject matter hereof, supersede all prior agreements and understandings
relating to the subject matter hereof, and may be amended only by an instrument
in writing executed by all parties, and supplemented only by documents delivered
or to be delivered in accordance with the express terms hereof. This Agreement
expires at the end of its term per Section 2 and provides for no automatic
extension or renewal unless separately agreed to in writing by the parties. In
the event of a conflict or inconsistency between any provision of this Agreement
and any provision of the Assignment of Inventions Agreement, whichever provision
is most favorable to the Company shall govern.
18. Successors and Assigns. This Agreement will be binding upon and
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inure to the benefit of the parties hereto and any successors in interest to the
Company, but neither this Agreement nor any rights hereunder may be assigned by
Employee except in the case of the death of Employee. However, this Agreement
may be assigned by the Company, in whole or part, to an Affiliate of the
Company.
19. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of Texas (excluding its
conflict of laws rules).
20. Cumulative Remedies. Except as provided in Exhibit A attached hereto,
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no remedy herein conferred upon any party is intended to be exclusive of any
other benefits or remedy, and each and every such remedy shall be cumulative and
shall be in addition to every other benefit or remedy given hereunder or now or
hereafter existing at law or in equity or by statute or otherwise. No single or
partial exercise by any party of any right, power or remedy hereunder shall
preclude any other exercise or further exercise thereof.
21. Alternate Dispute Resolution. Employee and the Company agree to the
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alternative dispute resolution provisions contained in Exhibit A attached
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hereto. The provisions of this Section 21 shall survive the termination or
expiration of this Agreement.
22. Multiple Counterparts. This Agreement may be executed in a number of
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identical counterparts, each of which constitute collectively, one agreement;
but, in making proof of this Agreement, it shall not be necessary to produce or
account for more than one counterpart.
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23. Descriptive Headings. The headings, captions and arrangements used in
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this Agreement are for convenience only and shall not be deemed to limit,
amplify, or modify the terms of this Agreement, nor affect the meaning hereof.
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Signatures
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To evidence the binding effect of the covenants and agreements described
above, the parties hereto have executed this Agreement effective as of the date
first above written.
THE COMPANY:
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
Chief Executive Officer
EMPLOYEE:
/s/ XXXXXXX X. XXXXXXX
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EXHIBIT A
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ALTERNATIVE DISPUTE RESOLUTION
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A. Except as otherwise provided in this Exhibit A, Cardkey Systems, Inc.,
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a Delaware corporation ("Cardkey" or the "Company"), and the Employee consent
and agree to the resolution, in the manner provided for in this Exhibit A, of
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all claims or controversies brought by the Employee ("Claims") for which a court
otherwise would be authorized by law to grant relief, in any way arising out of,
relating to, or associated with (1) the Employee's employment or termination
from employment with Cardkey or any adverse employment action by Cardkey, or (2)
any other claims the Employee may have against Cardkey, any benefit plans of
Cardkey or any Affiliate or any fiduciaries, administrators, and affiliates of
any such benefit plan, or any of Cardkey's officers, directors, employees, or
agents in their capacity as such, or (3) any issue concerning the formation,
applicability, interpretation, or enforceability of this Exhibit A.
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The Employee acknowledges that the Claims intended to be covered by this
Exhibit A include (but are not limited to) claims or controversies under or
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relating to the Employee's employment agreement (of which this Exhibit A is a
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part); any federal, state, or local constitution, law, or regulation prohibiting
discrimination, harassment, or discharge; an alleged or actual contract; any
Company policy or benefit; entitlement to wages or other compensation; and, any
claim for personal, emotional, physical, economic, or other injury.
B. The only Claims otherwise within the definition of Claims that are not
covered by this Exhibit A are: (1) any administrative actions that the Employee
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is permitted to pursue under applicable law that are not precluded by virtue of
the Employee having entered into this Exhibit A; (2) any Claim by the Employee
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for workers' compensation benefits or unemployment compensation benefits; or (3)
any Claim by the Employee for benefits under a Company pension or benefit plan
that provides its own non-judicial dispute resolution procedure.
C. The Employee waives any right to assert a Claim, unless he or she
gives written notice of any Claim to Cardkey by the earlier of (1) the date that
is one year after the day the Employee first has knowledge of the event giving
rise to the Claim or (2) the date upon which the applicable statute of
limitations expires.
D. Within 20 days of receipt of the notice of a Claim, CARDKEY, IN ITS
SOLE DISCRETION, MAY ELECT TO SUBMIT ANY CLAIMS TO BINDING ARBITRATION IN
ACCORDANCE WITH THE PROVISIONS OF THIS
EXHIBIT A. If Cardkey elects not to submit a Claim to binding arbitration, then
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the Employee may initiate or otherwise pursue the Claim by legal proceedings
other than binding arbitration (e.g., a lawsuit). The Employee agrees that if he
or she initiates litigation in violation of this Exhibit A, he or she will incur
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liability to the person(s) sued. The sole and exclusive venue of any lawsuit
initiated by the Employee relating to any Claims shall be Los Angeles County,
California.
E. The arbitration will be conducted in accordance with the provisions of
this Exhibit A and the Employment Dispute Resolution Rules of the American
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Arbitration Association ("AAA") in effect at the time the written notice of the
Claim is received. An arbitrator shall be selected in the manner provided for
in the Employment Dispute Resolution Rules of the AAA, except that the parties
agree that the arbitrator shall (1) be an attorney licensed in California and
(2) have expertise in the area of employment law. The arbitration will be held
in Los Angeles County, California.
F. Deposition discovery may be taken to the extent permitted by
applicable law. The Employee understands that by agreeing to submit Claims to
arbitration he or she gives up the right to seek a trial by court or jury and
the right to an appeal from any errors of the court and forgoes any and all
related rights he or she may otherwise have under federal and state laws.
G. In the event any provision of this Exhibit A is found by an arbitrator
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or court to be unenforceable, in whole or in part, the remaining provisions of
this Exhibit A shall nevertheless remain enforceable and the unenforceable
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provisions shall, to the extent permitted under applicable law, be modified so
as to be enforceable to the maximum extent possible under applicable law.
H. EMPLOYEE ACKNOWLEDGES THAT HE OR SHE HAS CAREFULLY READ THIS EXHIBIT
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A; THAT HE OR SHE UNDERSTANDS ITS TERMS; THAT ALL UNDERSTANDINGS BETWEEN THE
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EMPLOYEE AND CARDKEY RELATING TO THE SUBJECTS COVERED IN THIS EXHIBIT A ARE
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CONTAINED IN THIS EXHIBIT A; AND, THAT HE OR SHE HAS ENTERED INTO THIS EXHIBIT A
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VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY CARDKEY
OTHER THAN THOSE CONTAINED IN THIS EXHIBIT A ITSELF OR THE EMPLOYMENT AGREEMENT
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(TO WHICH THIS EXHIBIT A IS A PART).
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