Exhibit 10.1
Xxxxxxx Technology Company, Inc.
0 Xxxx Xxxxx Xxxx, Xxxxx 000
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Tel: 000 000-0000
Fax: 000 000-0000
June 19, 2010
Xx. Xxxx Xxxxxxx Xxxxxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Dear Xx. Xxxxxxxxxx:
This Amended and Restated Agreement (this "Agreement") sets forth the terms
of your employment with Xxxxxxx Technology Company, Inc., a Delaware corporation
(the "Company"). It supersedes our agreement dated June 19, 2007, which was
effective as of June 30, 2007, and is effective as of June 30, 2010. If not
extended or sooner terminated, this Agreement shall expire on September 30,
2012.
1. DUTIES. During the term of your employment hereunder, you shall be
employed as the President and Chief Executive Officer ("CEO") of the Company,
and you shall direct and manage the business, affairs, and property of the
Company subject to the direction of the Board of Directors of the Company (the
"Board of Directors").
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 four
hundred twenty thousand dollars ($420,000) (hereinafter referred to as your
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"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 July 1, 2010 and each
succeeding July 1 during the term of your employment hereunder, your
performance shall be reviewed by the Independent Directors of the Board of
Directors (as the term "Independent Directors" is defined in the Company's
Statement of Principles prepared for the Board of Directors), and your
attainment of mutually agreed-upon objectives evaluated. Your base salary for
the ensuing twelve (12) months commencing on each such July 1 may be adjusted,
subject to approval by the Independent Directors, in accordance with your level
of performance. In no case, however, will any such adjustment to your base
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 annually be eligible for receiving, effective with the fiscal
year ending June 30, 2010, incentive compensation, which incentive compensation
shall be determined and paid in accordance with the terms of the Company's
Management Incentive Compensation Plan (MICP) as in effect at that time.
D. Deferred Compensation. You shall be paid, at such times as are
set forth in this Agreement, deferred compensation based upon an amount equal to
thirty percent (30%) of your Final Average Pay (the "Deferred Compensation").
For purposes of this Agreement, the term "Final Average Pay" shall mean an
amount equal to (i) the total of (a) the sum of the base salary paid to you with
respect to each of the two (2) fiscal years ending immediately preceding the
fiscal year in which you became entitled to the Deferred Compensation, plus (b)
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the base salary payable to you at the time that you separated from the Company
(annualized to twelve (12) months), (ii) divided by three (3). Such thirty
percent (30%) of your Final Average Pay, when calculated, shall then be restated
to a monthly amount by dividing such amount by twelve (12) (the "Monthly
Amount"), and the Monthly Amount shall be paid monthly to you or to your
beneficiary or beneficiaries designated by you in writing to the Company, or, if
none is so designated, to your estate (such person or persons being referred to
herein as the "Beneficiary"), beginning on the day set forth in this Agreement,
for a period (except as otherwise provided in this Agreement) of one hundred
eighty (180) months. In this regard, if you die after the date on which you
first become entitled to payment of the Deferred Compensation, whether or not
the first payment of the Monthly Amount has been paid, and prior to the payment
of the Monthly Amount for one hundred eighty (180) months, the Monthly Amount
shall be paid monthly for the balance of such one hundred eighty (180) month
period to the Beneficiary. As of November 1, 2006 the amount of your Deferred
Compensation had vested to the extent of one hundred percent (100%) so that the
full amount of the Deferred Compensation shall be due and payable to you in the
instances set forth elsewhere in this Agreement.
E. Social Security. The Company has purchased a German
government-approved private pension insurance policy at a cost of approximately
1,000 Euros per month on behalf of you, as the President and Chief Executive
Officer of the Company, to remain in effect until the first to occur of (i) your
return to Germany, either with the Company or another employer, (ii) your having
remained in the United States for ten years (whereupon you will become eligible
for the U.S. Social Security plan), or (iii) the date you terminate employment
with the Company.
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3. INSURANCE. During the term of your employment hereunder, the
Company, subject to your insurability, shall (A) pay the premiums on a contract
or contracts of life insurance on your life providing for an aggregate death
benefit of two million dollars ($2,000,000), which contract or contracts will be
owned by you, your spouse or such other party as may be designated by you; and
(B) purchase key person term life insurance on your life in the aggregate amount
of two million dollars ($2,000,000), 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 during the term of this
Agreement, in accordance with the policies of the Company as in effect at the
time, for all reasonable expenses incurred by you in connection with the
business of the Company, and its Subsidiaries (as the term "Subsidiaries" is
defined in Xxxxxxxxx 0X hereof), including but not limited to business-class
travel, reasonable accommodations, and entertainment, subject to documentation
in accordance with the Company's policy, during the term of your employment
hereunder. In this connection, it is understood that certain business of the
Company will require the presence of your spouse, and this Paragraph 5 applies
as well to such expenses relating to her. All such reimbursements shall be made
in accordance with the Company's general policies for reimbursement of expenses,
but in no event later than the end of the calendar year following the calendar
year in which such expenses were incurred.
5. EXTENT OF SERVICES.
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.
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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.
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, 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, by any corporation in which the Company owns fifty percent (50%)
or more of the stock (either voting or non-voting), or by any other entity in
which the Company owns fifty percent (50%) or more of the equity interests
(either voting or non-voting) (collectively "Subsidiaries," individually a
"Subsidiary").
6. LOCATION. Your duties hereunder shall be performed for the Company
worldwide, with particular emphasis in the Company's office in Shelton,
Connecticut.
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 as in effect at the time. Your yearly vacation
accrual will be thirty (30) working days of annual vacation per year in year one
and all subsequent years. You may accumulate up to fifteen (15) weeks vacation,
but not more than four (4) weeks from any single prior year. Any such
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accumulated vacation may be used in any subsequent year or years (but no more
than three (3) 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) equity award 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. Maintenance,
insurance and fuel costs will be paid by the Company. Audi A-6, BMW Series 500
or equivalent automobile will be provided.
D. Club and Professional Services. During your employment hereunder
(i) the Company will reimburse you for the payment of annual dues, not in
excess of five thousand dollars ($5,000) per calendar year for your membership
at a social club of your choice, and (ii) the Company shall reimburse you, upon
submission by you to the Company of statements for services of any person or
persons of your choice that you have paid to advise you with regard to
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financial, investment, and tax matters; provided, however, that reimbursement
for such payments shall not exceed fifteen thousand dollars ($15,000) per
calendar year beginning with calendar year beginning 2010. All such
reimbursements shall be made in accordance with the Company's general policies
for reimbursement of expenses, but in no event later than the last day of the
calendar year following the calendar year in which such expenses were incurred.
The amount of expenses eligible for reimbursement in one calendar year shall not
affect the expenses eligible for reimbursement in any other calendar year.
8. TERMINATION OF EMPLOYMENT. For purposes of this Agreement,
termination of employment (including retirement) shall mean a separation from
service from the Company and any affiliates of the Company, as "separation from
service" is defined under Section 409A of the Internal Revenue Code, as amended,
and the regulations promulgated thereunder (collectively the "Code"). In the
event your employment is terminated for any reason set forth in this Paragraph
8, the Company shall pay to you 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 Paragraph 2A
hereof (as adjusted by Paragraph 2B 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) A single lump sum payment of any accrued but unpaid incentive
compensation set forth in Paragraph 2C hereof due to you at the date of
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such termination for the fiscal year ending on or immediately prior to the
date of such termination, which incentive compensation shall be paid within
the time period specified under the terms of the Management Incentive
Compensation Plan.
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 of two and nine-tenths times (2.9x) your
then current annual base salary set forth in Paragraph 2A hereof (as
adjusted by Paragraph 2B hereof), with payment to be made on the first day
of the seventh (7th) full calendar month immediately succeeding the month
in which the last day of your employment occurs;
(ii) 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 the time period specified under the terms of the Management
Incentive Compensation Plan;
(iii) The Deferred Compensation set forth in Paragraph 2D hereof with
payment of the Monthly Amount delayed until the first day of the seventh
(7th) full calendar month immediately succeeding the month in which the
last day of your employment occurs. However, the first such payment will
include the aggregate of the Monthly Amounts that would have been made
during the interim period, and, therefore, will be equal to seven (7) times
the Monthly Amount, and such payment shall reduce the number of overall
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payments due under Paragraph 2D hereof by seven (7). Payments under this
Paragraph 8A (iii) shall be made on the first day of each respective
calendar month;
(iv) Continuation of medical benefits for the period you are entitled
to COBRA continuation coverage under Section 4980B of the Code. The Company
shall reimburse you for eighty percent (80%) of any premiums paid by you
for such continuation. Provided, however, no such reimbursement hereunder
shall be made for continuation coverage extending beyond the earlier of (1)
the last day of the second calendar year following the calendar year in
which your employment is terminated or (2) the period for which you are
entitled to continuation coverage under Section 4980B of the Code, and all
such reimbursements shall be made in accordance with the Company's general
policies for reimbursement of expenses, but in no event later than the last
day of the third calendar year following the calendar year in which your
employment is terminated; and
(v) Reasonable executive outplacement services for a period of six (6)
months, immediately following your termination. Payment of such
outplacement services shall be made no later than the last day of the third
calendar year following the calendar year in which your employment is
terminated.
The Company shall have no further obligations to you under this Agreement and
you shall have no further obligations 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 not
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be entitled to any incentive compensation set forth in Xxxxxxxxx 0X hereof for
the fiscal year in which such termination or resignation occurs, but the Company
shall pay to you the Deferred Compensation set forth in Paragraph 2D hereof,
with payment of the Monthly Amount delayed until the first day of the seventh
(7th) full calendar month immediately succeeding the month in which the last day
of your employment occurs. However, the first such payment will include the
aggregate of the Monthly Amounts that would have been made during the interim
period, and, therefore, will be equal to seven (7) times the Monthly Amount, and
such payment shall reduce the number of overall payments due under Paragraph 2D
hereof by seven (7). Payments under this Paragraph 8B shall be made on the
first day of each respective calendar month. The Company shall have no further
obligations to you under this Agreement and you shall have no further
obligations 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 (i) 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 of
your duties under this Agreement, or (b) any action taken by you that seriously
prejudices the interests of the Company, or (ii) 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, shall be
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pro-rated through the last day of your employment, and shall be paid within
the time period specified under the terms of the Management Incentive
Compensation Plan; and
(ii) The Deferred Compensation as set forth in Paragraph 2D hereof
with payment of the Monthly Amount delayed until the first day of the
seventh (7th) full calendar month immediately succeeding the month in which
the last day of your employment occurs. However, the first such payment
will include the aggregate of the Monthly Amounts that would have been made
during the interim period, and, therefore, will be equal to seven (7) times
the Monthly Amount, and such payment shall reduce the number of overall
payments due under Paragraph 2D hereof by seven (7). Payments under this
Paragraph 8C(ii) shall be made on the first day of each respective calendar
month.
The Company shall have no further obligations to you under this
Agreement and you shall have no further obligations 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, and in
addition you meet one or both of the following requirements: (i) you are unable
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months, or (ii) you are, by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can be expected to
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last for a continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than 3 months under an accident
and health plan covering employees of the Company. In the event of Permanent
Disability, the Company shall pay to you or your legal representative:
(i) On the first (1st) and fifteenth (15th) of each month, commencing
with the first day of the seventh (7th) month following such Permanent
Disability, a semi-monthly amount equal to fifty percent (50%) of the
monthly base salary you were receiving at the date of such Permanent
Disability 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 semi-monthly 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, and the first such payment shall include a lump sum payment in an
amount equal to the amount that would have been paid under this Paragraph
8D(i) had payments hereunder commenced immediately upon the first day of
the first month following your Permanent Disability;
(ii) A single lump sum payment of 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, shall be pro-rated through the last day of your employment, and shall
be paid within the time period specified under the terms of the Management
Incentive Compensation Plan; and
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(iii) The Deferred Compensation set forth in Paragraph 2D hereof with
payment of the Monthly Amount delayed until the first day of the seventh
(7th) full calendar month immediately succeeding the month in which the
last day of your employment occurs. However, the first such payment will
include the aggregate of the Monthly Amounts that would have been made
during the interim period, and, therefore, will be equal to seven (7) times
the Monthly Amount, and such payment shall reduce the number of overall
payments due under Paragraph 2D hereof by seven (7). Payments under this
Paragraph 8D(iii) shall be made on the first day of each respective
calendar month.
The Company shall have no further obligations to you under this
Agreement and you shall have no further obligations to the Company under
this Agreement except as provided in Paragraph 11 and Paragraph 12 hereof.
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) A single lump sum payment of 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, shall be pro-rated through the last day of your employment, and shall
be paid within the time period specified under the terms of the Management
Incentive Compensation Plan; and
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(ii) The Deferred Compensation as set forth in Paragraph 2D hereof
with payment of the Monthly Amount commencing on the first day of the first
calendar month immediately succeeding the month in which your death occurs,
to the Beneficiary.
The Company shall have no further obligations to you under this Agreement and
you shall have no further obligations 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 five (5) year periods, unless and until
either party notifies the other, in writing, two years prior to the expiration
of the then-current term of this Agreement. If either party notifies the other
party in writing of the non-renewal of this Agreement two (2) years prior to the
end of this Agreement, you shall be obligated to continue as President and Chief
Executive Officer up to a maximum of six (6) months from the date of such
notification if the Board of Directors so requests.
In the event your employment is terminated through non-renewal of this
Agreement, the Company shall pay you the following:
(i) A single lump sum payment of two (2) times your then current base
salary set forth in Paragraph 2A hereof (as adjusted by Paragraph 2B
hereof) less a pro-rated adjustment for the portion of your then current
base salary already paid during the two (2) year non-renewal notice period
(up to a maximum of six (6) months). Such payment shall be made on the
first day of the seventh (7th) full calendar month immediately succeeding
the month in which the last day of your employment occurs;
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(ii) 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, shall be
pro-rated through the last day of your employment and shall be paid within
the time period specified under the terms of the Management Incentive
Compensation Plan;
(iii) The Deferred Compensation set forth in Paragraph 2D hereof with
payment of the Monthly Amount delayed until the first day of the seventh
(7th) full calendar month immediately succeeding the month in which the
last day of your employment occurs. However, the first such payment will
include the aggregate of the Monthly Amounts that would have been made
during the interim period, and, therefore, will be equal to seven (7) times
the Monthly Amount, and such payment shall reduce the number of overall
payments due under Paragraph 2D hereof by seven (7). Payments under this
Paragraph 8F(iii) shall be made on the first day of each respective
calendar month; and
(iv) Continuation of medical benefits for the period you are entitled
to COBRA continuation coverage under Section 4980B of the Code. The Company
shall reimburse you for eighty percent (80%) of any premiums paid by you
for such continuation. Provided, however, no such reimbursement hereunder
shall be made for continuation coverage extending beyond the earlier of (1)
the last day of the second calendar year following the calendar year in
which your employment is terminated or (2) the period for which you are
entitled to continuation coverage under Section 4980B of the Code, and all
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such reimbursements shall be made in accordance with the Company's general
policies for reimbursement of expenses, but in no event later than the last
day of the third calendar year following the calendar year in which your
employment is terminated.
The Company shall have no further obligations to you under this Agreement
and you shall have no further obligations 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) The removal of you or the election of any other person as the
President and Chief Executive Officer of the Company, provided, however,
that you shall not have approved such removal or such election, in your
capacity as a director, by voting for such removal or such election;
(ii) 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;
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(iii) Any change of a majority of the directors of the Company
occurring within any thirteen (13) month period, or the acquisition by a
single person or entity or a related group of persons or entities, of
shares of any class or classes of voting stock of the Company representing
twenty-five percent (25%) or more of the total votes entitled to be cast by
all of the then outstanding share of all classes of voting stock of the
Company; provided, however, that there shall be excluded from any such
calculation of percentage of ownership all stock held by any officer of the
Company on the effective date of this Agreement;
(iv) The adoption by the Company of any plan of liquidation providing
for the distribution of all or substantially all of its assets, provided
however, that you shall not have approved the adoption of such plan, in
your capacity as a director, by voting for it; and
(v) The failure by the Company to observe or comply in any material
respect with any of the provisions of this Agreement, including 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 President and Chief Executive Officer of the
Company if such failure has not been cured within thirty (30) days after
written notice thereof has been given by you to the Company.
H. No Excess Parachute Payments. Notwithstanding anything to the
contrary contained in this Agreement, if the Company obtains a written opinion
of its tax counsel ("Tax Counsel") to the effect that there exists a material
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possibility that any payment to which you would (but for the application of this
Paragraph 8H) be entitled under this Agreement would (but for such application)
be treated as an "excess parachute payment" (as defined in Section 280G (b) of
the Code), this Agreement shall be amended by reducing the payments to which you
are entitled hereunder, as follows, to the extent necessary so that, in the
opinion of Tax Counsel, there does not exist a material possibility that any
payment to which you are entitled under this Agreement (as so amended) will be
treated as an excess parachute payment: first, the Deferred Compensation (and,
concomitantly, the Monthly Amount), second (if applicable), the amount payable
under Paragraph 8A(i) hereof by virtue of your election under Paragraph 8G
hereof to treat an event described therein as constituting the termination of
your employment, and third, on a pro-rata basis, all other amounts (other than
amounts payable pursuant to Paragraph 4 hereof, which shall in any event be paid
in full) to which you are entitled hereunder.
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, the Beneficiary, nor any other person or persons 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, the Beneficiary, nor any other person or persons,
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it being expressly agreed that neither you, the Beneficiary, nor any other
person or persons 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,
the Beneficiary, or any other person or persons. You, the Beneficiary, and any
other person or persons 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, the Beneficiary, 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 the
Company may have any right, title, or interest now or in the future, but you,
the Beneficiary, and any other person or persons shall have the right to enforce
a claim for benefits hereunder against the Company in the same manner as any
unsecured creditor. Notwithstanding anything to the contrary set forth in this
Paragraph 10, the Company has established a so-called "rabbi trust" as described
in the Internal Revenue Service's Revenue Procedure 92-64, and is permitted to
contribute the amounts necessary for the Company to fund the Deferred
Compensation set forth in Paragraph 2D hereof.
11. INVENTIONS AND CONFIDENTIAL INFORMATION. As 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
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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 shall,
without charge to the Company but at the Company's 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, discoveries, and improvements as indicated above
conceived during your employment by the Company, and for three (3) years
thereafter. You shall 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 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,
22
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. LEGAL FEES. The Company shall reimburse you, upon submission by you to
the Company of a statement, for services of any attorney or attorneys of your
choice that you have paid to advise you with regard to this Agreement; provided,
however, that such reimbursement shall not exceed twenty thousand dollars
($20,000) per calendar year beginning with the calendar year 2010. Any such
reimbursement shall be made in accordance with the Company's general policies
for reimbursement of expenses, but in no event later than the last day of the
calendar year following the calendar year in which the expense was incurred.
The amount of expenses eligible for reimbursement during one calendar year shall
not affect the expenses eligible for reimbursement in any other calendar year.
14. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement, or the breach or asserted breach hereof, 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 jurisdiction thereof. The
arbitrator shall determine which party shall bear the costs of such arbitration,
including attorneys' fees.
15. NON-ASSIGNABILITY. Your rights and benefits hereunder are personal to
you, and shall not be alienated, voluntarily or involuntarily, assigned, or
transferred.
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16. 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, the Beneficiary, or any other person or persons,
nor shall you, the Beneficiary, or any other person or persons have any right to
transfer or encumber any right or benefit hereunder.
17. 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. The Employment
Contract with Xxxxxxx German Capital Holding GmbH ("BGC") effective November 1,
2001; the agreement dated September 19, 2001 as amended on February 14, 2003,
May 12, 2003, and February 10, 2004; our agreement dated August 17, 2005 which
was effective as of July 1, 2005 as amended on November 14, 2005; and our
agreement dated June 19, 2007 which was effective as of June 30, 2007, are now
null and void.
18. DEFERRED COMPENSATION. The portions of this Agreement dealing with
deferred compensation have been prepared with reference to Section 409A of the
Code and should be interpreted and administered in a manner consistent with
Section 409A.
19. 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
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payments required hereunder by the Company to you shall be sent postage prepaid,
or, at 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:
------- ---------------
Xxxx Xxxxxxx Xxxxxxxxxx Xxxxxxx Technology Company, Inc.
00 Xxxxxxxx Xxxx 0 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000 Xxxxxxx, XX 00000-0000
20. LAW TO GOVERN. This Agreement shall be governed by, and construed
and enforced according to, the domestic laws of the State of New York without
giving effect to the principles of conflict of laws.
Very truly yours,
AGREED TO AND ACCEPTED: XXXXXXX TECHNOLOGY COMPANY, INC.
By: /s/Xxxx Xxxxxxx Xxxxxxxxxx By: /s/Xxxxx Xxxxxxxxx
-------------------------- ------------------
Xxxx Xxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxxxx
[June 19, 2010] Chair of the Compensation
Committee of the Board of Directors
[06-19-10]
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