EXHIBIT 10.13
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of March 2005, between BRIDGETECH
HOLDINGS INTERNATIONAL, INC., a Delaware corporation ("Employer"), and XXXXXXX
X. XXXX, an individual resident of the State of Texas ("Employee").
WITNESSETH:
WHEREAS, Employer and Employee desire to set forth the terms of Employee's
employment by Employer;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein set forth, the parties hereto agree as follows:
1. EMPLOYMENT. Employer hereby engages and employs Employee and Employee
accepts such employment with Employer, all on the terms set forth herein.
Employee's principal duties initially shall be to serve as Chairman of the Board
of Employer with general responsibilities for all strategic matters of Employer.
During his or her employment hereunder, Employee shall devote his or her best
efforts and attention on a full-time basis to the performance of the duties
required of Employee and shall discharge his or her duties in accordance with
the directions of the Board of Directors of Employer.
2. CANCELLATION OF EXISTING CONTRACTS. Employer and Employee agree that
any existing employment, noncompetition, confidentiality or change-in-control
agreements will be cancelled upon the effectiveness of this Agreement.
3. COMPENSATION.
3.1 CASH COMPENSATION. As partial compensation for his or her
services hereunder, Employee:
(a) shall receive an annual base salary of Four Thousand and
No/100 ($400,000.00) Dollars (U.S.), prorated for any partial year of employment
and payable in equal installments in accordance with Employer's then-current
payroll practices and procedures and subject to all applicable taxes and
withholdings;
(b) shall receive reimbursement of ordinary and necessary
travel and other expenses, subject to Employer's standard policies (including
any required approvals), including without limitation (i) a monthly car
allowance of One Thousand and No/100 ($1,000.00) Dollars (U.S.), and (ii)
reimbursement for all cell phone and Internet access charges;
(c) shall be provided medical and dental coverage for Employee
and his immediate family by Employer, either through an employee benefit plan or
separate policy(s), with Employer paying one hundred (100%) percent of all
premiums on such coverages,; and
(d) shall be eligible to participate in those (i) employee
benefit plans, and (ii) incentive compensation and equity-related programs,
maintained by Employer, the latter being contingent upon recommendation of the
Chairman of the Board of Employer and approval by the Compensation Committee of
Employer's Board of Directors; provided, however, that any such incentive
compensation plan shall provide that, upon mutual pre-determined performance
goals being achieved, Employee shall receive an annual bonus in cash not less
than fifty (50%) nor more than one hundred (100%) percent of Employee's
then-current annual salary.
3.2 EQUITY COMPENSATION. As additional compensation for his or her
services hereunder, Employee:
(a) Shall be granted on an annual basis non-qualified or
incentive (as the parties may from time-to-time determine) options to purchase
shares of the voting capital stock of Employer, in such amounts and at such
exercise prices as may be determined from time-to-time by the Compensation
Committee of Employer's Board of Directors, and upon such terms as are set forth
in the documentation to evidence such grant; provided, however, that Employer
hereby agrees, and such documentation shall provide, that such options shall
fully vest upon the sooner to occur of (i) the third anniversary of the date of
grant, or (ii) a Change of Control (as that term is defined in Exhibit "B"
attached hereto); and
4. CONFIDENTIALITY. Employee shall not disclose to third parties or use
for his or her own or others' benefit any Proprietary Information of Employer or
any of its subsidiaries of which he or she becomes informed during his or her
employment, whether or not such information or material is developed by him,
except as might be required to be disclosed or used by him in order to perform
the duties of his or her employment. As used herein, the term "Proprietary
Information" refers to any and all information of a confidential, proprietary or
secret nature which is or may be either applicable to or related in any way to
(a) the business, present or future, of Employer or any of its subsidiaries,
including without limitation the business of Employer, (b) the research and
development or investigations of Employer or any or its subsidiaries, or (c) the
business of any customer of Employer or any of its subsidiaries, and shall
include, but not be limited to, trade secrets, processes, formulas, data,
algorithms, source codes, object codes, documentation, flow-charts, drawings,
correspondence, know-how, improvements, inventions, techniques, concepts,
technologies, programs, designs, personnel records, marketing plans and
strategies, customer lists, pricing and bidding policies and practices, costing
information, salaries, proposals to licensors or customers, any data,
confidential information or property entrusted to Employer or any of its
subsidiaries by any licensors or customers and confidential information
concerning customers or employees of Employer or any of its subsidiaries.
Employee shall remain under this obligation of confidentiality for a period
expiring one (1) year after termination of his or her employment hereunder (or
indefinitely in the case of trade secrets) unless and until he or she is
expressly released from it in a writing signed by
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Employer or he or she learns with certainty that the information or material in
question has become public knowledge.
5. EMPLOYER'S RIGHTS TO CERTAIN DISCOVERIES, ETC. Employee shall disclose
promptly to Employer any and all concepts, inventions, improvements,
discoveries, developments, techniques, modifications, procedures, formulas,
ideas, trade secrets, innovations, systems, programs, know-how or designs
(collectively, the "Discoveries") related to the business or activities of
Employer that he or she conceives, develops or reduces to practice during the
time that he or she is employed by Employer. Employee agrees that all his or her
right, title and interest in such Discoveries shall belong to Employer, in
confirmation of which he or she shall execute deeds of assignment of such right,
title and interest to Employer, its nominees, successors or assigns, whenever
requested, without demanding separate or additional compensation therefor. All
of the foregoing shall be the subject of the same confidentiality, nonuse and
nondisclosure requirements as are prescribed in Section 4 hereof. Any of the
Discoveries related to the business of Employer that Employee may reduce to
practice or apply for a copyright or patent on during the first six (6) months
after termination of his or her employment hereunder shall be presumed to have
been conceived by him during the time of such employment and as such shall
belong to Employer, and the burden shall be upon Employee, if he or she contends
it was not, to prove it was not by clear and convincing evidence.
6. ASSISTANCE IN PROTECTING DISCOVERIES, ETC. Employee shall assist
Employer and its nominees, successors or assigns (at its or their request) in
every proper way during and following the period of his or her employment
(entirely at its or their expense) to obtain and maintain for its or their own
benefit copyrights or patents in any and all countries for all Discoveries
described in Section 5 hereof. Such assistance shall include, but not be limited
to, the execution and delivery of all lawful papers and documents of every
nature which relate to the securing and maintenance of such copyrights and
patent rights, and the performance of all other lawful acts, such as the giving
of testimony in any interference proceedings, infringement suits, or other
litigation, as may be deemed necessary or advisable by Employer or its nominees,
successors or assigns.
7. DELIVERY OF DOCUMENTATION, ETC. Upon termination of his or her
employment, Employee shall promptly deliver to Employer any and all software,
documents, drawings, manuals, letters, notes, notebooks, reports, and copies
thereof, and all other materials of a secret or confidential nature relating to
Employer's business or activities, or relating to Employer's customers, vendors
or other business associates, that are in his or her possession or under his or
her control.
8. COVENANTS NOT TO COMPETE WITH OR SOLICIT FROM EMPLOYER. Acknowledging
that the covenants contained in this Section 8 are part of the consideration
for, and are reasonable in light of the employment and compensation covenants of
Employer contained in this Agreement, Employee hereby covenants and agrees with
Employer that, during his or her employment with Employer and for a period
expiring one (1) year after the date of termination of such employment, that:
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(a) During the period of such employment he or she will not directly
or indirectly compete with Employer for the business of providing products or
services of any type provided by Employer during the term of this Agreement and
will not otherwise engage in Prohibited Competition (as such term is defined in
Section 8(b)), and after termination of such employment he or she will not
directly or indirectly compete with Employer for the business of providing
products or services (or derivative products or services) which were offered or
provided by Employer within one (1) year prior to the termination of such
employment within that geographical area shown on Exhibit "A" attached hereto
and incorporated herein (the "Territory") nor otherwise engage in Prohibited
Competition. The Territory is hereby acknowledged by both Employer and Employee
as comprising the primary territory served by Employer and the territory in
which Employer has actively solicited customers as of the date hereof.
(b) "Prohibited Competition" shall consist of acting as consultant,
advisor, independent contractor, officer, manager, employee, principal, agent,
trustee of any corporation, partnership, association or agent or agency, or
directly or indirectly owning more than one (1%) percent of the outstanding
capital stock of any corporation, or being a member or employee of any
partnership or any owner or employee of any other business, any of which
conducts a business in competition with Employer or any of its subsidiaries for
the duration of this noncompetition agreement as set forth herein. "Prohibited
Competition" shall also include (in addition to the foregoing):
(i) Accepting employment with a customer of Employer or
Employer's affiliates with the intent or purpose of transferring business
performed by Employer or Employer's affiliates to a department, division
of affiliate of the customer;
(ii) Requesting or advising any of the customers, suppliers or
other business contacts of Employer or Employer's affiliates to withdraw,
curtail, cancel or not increase their business with Employer or Employer's
affiliates; or
(iii) Causing or inducing, or attempting to cause or induce, either
directly or indirectly, any employees, sales representatives, consultants or
other personnel of Employer or Employer's affiliates to terminate their
relationships or employment or breach their agreements with Employer or
Employer's affiliates, whether for the purpose of accepting employment with
Employee or any other person, firm, association or corporation with which
Employee is associated, or otherwise, or hiring any employee of Employer or its
affiliates within four (4) months of such person having left the employ of
Employer or of such affiliate.
9. INJUNCTIVE RELIEF. Employee recognizes that the breach of any of his or
her obligations under Sections 4, 5, 6, 7 or 8 hereof will give rise to
irreparable injury to Employer inadequately compensable in damages and that,
accordingly, Employer shall be entitled to injunctive relief against the breach
or threatened breach of the within undertaking, without the requirement of
posting a bond, in addition to other remedies at law or in equity which may be
available.
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10. TERM. The term of this Agreement shall begin on the effective date of
this Agreement and shall terminate on the third anniversary hereof, unless
sooner terminated by either party in the manner set forth below; provided,
however, that commencing on the first anniversary hereof and on each subsequent
anniversary thereof, the term of this Agreement shall automatically be extended
for three (3) years from each such date. Either Employer or Employee may
terminate Employee's employment at any time by giving thirty (30) days' prior
written notice to the other. In addition, Employer shall have the right at any
time to terminate Employee's employment immediately for cause. Any action by
Employer to terminate Employee's employment shall be deemed "for cause" if:
(a) Employee is unable to perform the essential functions of his or
her job, with or without reasonable accomodation, (i) either as a result of
physical or mental illness or other cause continuing for a consecutive period of
more than ninety (90) days, or the habitual use of alcohol or drugs; or (ii)
repeated and substantial failure to perform his or her duties after written
notice of such failure;
(b) Employee has disclosed any material secret or confidential
information of Employer or any subsidiary thereof without the consent of
Employer or has violated or disregarded any other material duties, obligations
or expected conduct as an employee of Employer;
(c) Employee has committed any act or omitted to take any action in
bad faith and to the detriment of Employer or any affiliate thereof;
(d) Employee has committed (i) any felony; or (ii) any misdemeanor
or other illegal conduct involving dishonesty, fraud or other matters of moral
turpitude; or
(e) Employee has acted against, or failed or omitted to act in, the
best interests of Employer or any affiliate thereof, as determined in good faith
by the Board of Directors of Employer.
Employee's obligations under Sections 4, 5, 6, 7, 8 and 12 hereof shall survive
and continue in effect following any termination of employment.
11. SEVERANCE. If Employer should terminate Employee's employment for any
reason other than for cause pursuant to the preceding Section 10, Employee shall
be paid an amount equal to his or her then-current monthly salary multiplied by
the number of months remaining under this agreement, which payment shall be
considered additional consideration for the noncompetition agreements set out in
Section 8 hereof. Employee shall also be paid all unpaid annual bonuses for the
remaining years under this agreement, in cash, at one hundred (100%) of the
employee's then-current annual salary.
12. LITIGATION ASSISTANCE. Employee shall, for a period of five (5) years
after termination of his or her employment hereunder, at no cost to Employer,
unless otherwise provided herein, diligently and fully cooperate with Employer,
including testifying, answering
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interrogatories, being deposed, and generally providing information and fully
cooperating with the defense or prosecution of any suit or cause of action
brought by or defended by Employer based upon any facts relating to any contact
or matter which originated during Employee's employment by Employer. Employer
agrees to provide reasonable travel expenses pursuant to its current business
travel policy for Employee's assistance and cooperation in all such actions or
suits, if required. Any requests for time away from Employee's work must be
reasonably acceptable to Employee, and Employee shall be compensated on a per
diem basis based on Employee's annual salary on the day before termination of
this Agreement.
13. ASSIGNMENT. The rights and benefits of Employee under this Agreement,
other than accrued and unpaid amounts due under Section 3 hereof, are personal
to him and shall not be assignable. Discharge of Employee's undertakings in
Sections 4, 5, 6, 7 and 8 hereof shall remain an obligation of Employee's
executors, administrators, or other legal representatives or assigns.
14. NOTICES. All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by either party to the other
party pursuant to this Agreement shall be in writing and shall be hand delivered
(including delivery by courier so long as a receipt or confirmation of delivery
is obtained), sent by Federal Express or other recognized overnight delivery
service, mailed by first-class, registered or certified mail, return receipt
requested, postage prepaid, or transmitted by facsimile transmission (followed
by delivery of the original of such document), addressed as set forth below.
Either party hereto may designate by notice, in the manner herein above
provided, a new address to which any notice, demand, request or communication
may thereafter be so given, served or sent. Each notice, demand, request or
communication which shall be mailed, delivered, or transmitted in the manner
described above shall be deemed sufficiently given, served, sent and received
for all purposes at such time as it is delivered to the addressee (with the
return receipt, the delivery receipt, the affidavit of messenger or (with
respect to a facsimile transmission) the answer back being deemed conclusive
evidence of such delivery) or at such time as delivery is refused by the
addressee upon presentation.Any notice or other communications under this
Agreement shall be in writing, signed by the party making the same, and shall be
delivered personally or sent by certified or registered mail, postage prepaid,
addressed as follows:
If to Employee: Xxxxxxx X. Xxxx
000 Xxxx Xxxx Xxxxx
Xxxxxx, Xxxxx 00000
If to Employer: Bridgetech Holdings International, Inc.
Xxxxx 000
000 Xxxxx Xxxxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
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Facsimile: (000) 000-0000
15. GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Texas.
16. SEVERABILITY. The parties agree that construction of this Agreement
shall be in favor of its reasonable nature, legality and enforceability, and
that any construction causing unenforceability shall yield to a construction
permitting enforceability. It is agreed that the noncompetition,
nonsolicitation, nondisclosure and nonhiring covenants and provisions of this
Agreement are severable, and that if any single covenant or provision or
multiple covenants or provisions should be found unenforceable, the entire
Agreement and remaining covenants and provisions shall not fail but shall be
construed and enforceable without any severed covenant or provision in
accordance with the tenor of this Agreement. The parties specifically agree that
no covenant or provision of this Agreement shall be invalidated because of
overbreadth insofar as the parties acknowledge the scope of the covenants and
provisions contained herein to be reasonable and necessary for the protection of
Employer and not unduly restrictive upon Employee. However, should a court or
any other trier of fact or law determine not to enforce any covenant or
provision of this Agreement as written due to overbreadth, then the parties
agree that said covenant or provision shall be enforced to the extent
reasonable, with the court or such trier to make any necessary revisions to said
covenant or provision to permit its enforceability, whether said revisions be in
time, territory, or scope of prohibited activities.
17. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties hereto with respect to the subject matter contained herein. There are no
restrictions, promises, covenants, or undertakings, other than those expressly
set forth herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter. This
Agreement may not be changed except by a writing executed by the parties.
18. HEADINGS. The headings contained herein are for convenience of
reference only and are not intended to define, limit, expand or describe the
scope or intent of any provision of this Agreement.
19. COUNTERPARTS. This Agreement may be executed in any number or
counterparts, each of which shall be deemed a part of the same original.
IN WITNESS WHEREOF, the undersigned have executed this Agreement under
seal as of the day and year first above written.
EMPLOYER: EMPLOYEE:
BRIDGETECH HOLDINGS
INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxx III /s/ Xxxxxxx X. Xxxx
--------------------------- -----------------------------
XXXXXXX X. XXXX
Name: Xxxxxx X. Xxxx III
Title: EVP & CFO
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EXHIBIT "A"
RESTRICTED TERRITORY
The United States of America
Exhibit "A"
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EXHIBIT "B"
CHANGE OF CONTROL
For the purposes of this Agreement, a "Change of Control" shall mean a change in
control of Employer of a nature that would be required to be reported (assuming
such event has not been "previously reported") in response to Item 1(a) of a
Current Report on Form 8-K pursuant to Section 13 or 15(d) of the Exchange Act
of 0000 (xxx "Xxxxxxxx Xxx"); provided that, without limitation, a Change in
Control shall also be deemed to have occurred at such time as:
(A) Any "person" within the meaning of Section 14(d) of the Exchange
Act, other than Employer, a subsidiary, or any employee benefit plan(s)
sponsored by Employer or any subsidiary thereof, is or has become the
"beneficial owner," as defined in Rule 13d-3 under the Exchange Act, directly or
indirectly, of fifty percent (50%) or more of the combined voting power of the
outstanding securities of Employer ordinarily having the right to vote at the
election of directors; or
(B) Individuals who constitute the Board immediately prior to any
meeting of stockholders (the "Incumbent Board") have ceased for any reason to
constitute at least a majority thereof, provided that any person becoming a
director whose election, or nomination for election by Employer's stockholders,
was approved by a vote of at least three-quarters (3/4) of the directors
comprising the Incumbent Board (either by a specific vote or by approval of the
proxy statement of Employer in which such person is named as a nominee for
director without objection to such nomination) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board; or
(C) Upon approval by Employer's stockholders of a reorganization,
merger, share exchange or consolidation, other than one with respect to which
those persons who were the beneficial owners, immediately prior to such
reorganization, merger, share exchange or consolidation, of outstanding
securities of Employer ordinarily having the right to vote in the election of
directors own, immediately after such transaction, more than fifty percent (50%)
of the outstanding securities of the resulting corporation ordinarily having the
right to vote in the election of directors; or
(D) Upon approval by Employer's stockholders of a complete
liquidation and dissolution of Employer or the sale or other disposition of all
or substantially all of the assets of Employer other than to a subsidiary
thereof.
Exhibit "B"
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