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Exhibit 10.35
SUPERCONDUCTOR TECHNOLOGIES, INC.
EMPLOYMENT AGREEMENT
This Agreement is entered into as of July 1, 1997, (the "Effective
Date") by and between Superconductor Technologies, Inc. (the "Company"), and E.
Xxx Xxxxxx (the "Employee").
In consideration of the promises and mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, it is mutually covenanted and agreed by and between the
parties as follows:
1. POSITION AND DUTIES. Employee shall be employed, as of the Effective
Date, as Vice Chairman of the Company, reporting to the Company's Board of
Directors and President and CEO and assuming and discharging such
responsibilities as are commensurate with Employee's position. Employee
acknowledges that frequent travel may be necessary in carrying out his duties
hereunder. Employee shall perform his duties faithfully and to the best of his
ability and shall devote his full business time and effort to the performance of
his duties hereunder.
2. AT-WILL EMPLOYMENT. The parties agree that the Employee's employment
with the Company shall be "at-will" employment and may be terminated at any time
with or without cause or notice. No provision of this Agreement shall be
construed as conferring upon Employee a right to continue as an employee of the
Company.
3. COMPENSATION. For all services to be rendered by Employee pursuant
to this Agreement, Employee shall receive an annual base salary of $154,000 (the
"Base Salary"), payable monthly in accordance with the Company's normal payroll
practices.
4. OTHER BENEFITS. Employee shall be entitled to participate in the
employee benefit plans and programs of the Company, if any, to the extent that
his position, tenure, salary, age, health and other qualifications make him
eligible to participate in such plans or programs, subject to the rules and
regulations applicable thereto. The Company reserves the right to cancel or
change the benefit plans and programs it offers to its employees at any time.
5. EXPENSES. The Company shall reimburse Employee for reasonable
travel, entertainment or other expenses incurred by Employee in the furtherance
of or in connection with the performance of Employee's duties hereunder, in
accordance with the Company's expense reimbursement policy as in effect from
time to time.
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6. TERMINATION.
(A) INVOLUNTARY TERMINATION. If Employee's employment with the
Company terminates in an Involuntary Termination, then (i) Employee shall be
entitled to receive continuing payments of severance pay at a rate equal to
Employee's current Base Salary, and (ii) the Company shall make available to
Employee and Employee's spouse and dependents, at the Company's expense for a
period of twelve (12) months following Employee's termination, group health,
life and other similar insurance plans substantially comparable to the group
health, life and other similar insurance plans in which Employee or such
dependents participated on the date of such termination.
(B) OTHER TERMINATION. If Employee's employment terminates
other than in an Involuntary Termination, then Employee shall not be entitled to
receive severance or other benefits pursuant to this Agreement, but may be
eligible for those benefits (if any) as may then be established under the
Company's severance and benefits plans and policies existing at the time of such
termination.
7. DEFINITIONS.
(A) CAUSE. "Cause" shall mean the occurrence of any one or
more of the following: (i) Employee's conviction by, or entry of a plea of
guilty or nolo contendere in, a court of final jurisdiction for any crime which
constitutes a felony in the jurisdiction involved; (ii) Employee's
misappropriation of funds or commission of an act of fraud, whether prior or
subsequent to the date hereof, upon the Company; (iii) negligence by Employee in
the scope of Employee's services to the Company; (iv) a breach by Employee of a
material provision of this Agreement; or (v) a failure of Employee to
substantially perform his duties hereunder. Notwithstanding the foregoing,
Employee shall not be deemed to have been terminated for Cause without (i)
reasonable notice to Employee setting forth the reasons for Company's intention
to terminate for Cause, and (ii) an opportunity for Employee, together with his
counsel, if any, to be heard before the Board.
(B) INVOLUNTARY TERMINATION. "Involuntary Termination" shall
mean (i) without Employee's express written consent, a material reduction of
Employee's duties, position or responsibilities relative to Employee's duties,
position or responsibilities in effect immediately prior to such reduction, or
the removal of Employee from such position, duties and responsibilities, unless
Employee is provided with comparable duties, position and responsibilities; (ii)
without Employee's express written consent, a material reduction of the
facilities and perquisites (including office space and location) available to
Employee immediately prior to such reduction; (iii) without Employee's express
written consent, a reduction by the Company of Employee's Base Salary in effect
immediately prior to such reduction; (iv) a material reduction by the Company in
the kind or level of employee benefits to which the Employee is entitled
immediately prior to such reduction with the result that the Employee's overall
benefits package is significantly reduced; (v) any purported termination of the
Employee by the Company which is not effected for Cause or for which the grounds
relied upon are not valid; or (vi) the failure of the Company to obtain the
assumption of this Agreement by any successors contemplated in Section 11 below.
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8. RIGHT TO ADVICE OF COUNSEL. Employee acknowledges that he has had
the right to consult with counsel and is fully aware of his rights and
obligations under this Agreement.
9. SUCCESSORS.
(A) COMPANY'S SUCCESSORS. Any successor to the Company
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Company's business and/or assets shall assume the obligations under this
Agreement and agree expressly to perform the obligations under this Agreement in
the same manner and to the same extent as the Company would be required to
perform such obligations in the absence of a succession. For all purposes under
this Agreement, the term "Company," shall include any successor to the Company's
business and/or assets which executes and delivers the assumption agreement
described in this subsection (a) or which becomes bound by the terms of this
Agreement by operation of law.
(B) EMPLOYEE'S SUCCESSORS. Without the written consent of the
Company, Employee shall not assign or transfer this Agreement or any right or
obligation under this Agreement to any other person or entity. Notwithstanding
the foregoing, the terms of this Agreement and all rights of Employee hereunder
shall inure to the benefit of, and be enforceable by, Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
10. NOTICE CLAUSE.
(A) MANNER. Any notice hereby required or permitted to be
given shall be sufficiently given if in writing and upon mailing by registered
or certified mail, postage prepaid, to either party at the address of such party
or such other address as shall have been designated by written notice by such
party to the other party.
(B) EFFECTIVENESS. Any notice or other communication required
or permitted to be given under this Agreement will be deemed given on the day
when delivered in person, or the third business day after the day on which such
notice was mailed in accordance with Section 12(a).
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal substantive laws, but not the choice of law rules,
of the state of California.
12. SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement, or any terms hereof, shall not affect the validity or
enforceability of any other provision or term of this Agreement.
13. INTEGRATION. This Agreement represents the entire agreement and
understanding between the parties as to the subject matter herein and supersedes
all prior or contemporaneous agreements whether written or oral. No waiver,
alteration, or modification of any of the provisions of this Agreement shall be
binding unless in writing and signed by duly authorized representatives of the
parties hereto.
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14. TAXES. All payments made pursuant to this Agreement shall be
subject to withholding of applicable income and employment taxes.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Acquiror and the Company by their duly authorized officers, as
of the day and year first above written.
SUPERCONDUCTOR TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxx, Xx.
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Title: Vice President and Chief Financial Officer
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EMPLOYEE:
/s/ E. Xxx Xxxxxx
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Name
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