INDUSTRIAL TRAINING CORPORATION
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EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is made and entered into
effective as of the 3rd day of January, 1997 (the "Effective Date") by and
between Industrial Training Corporation (the "Company") and Xxxxxx X. Xxxxxxxx
(the "Executive").
RECITALS
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A. The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of Maryland. The
Company is engaged in the business of developing, marketing, and selling
training materials, primarily in multimedia platforms.
B. The Company owns all of the issued and outstanding stock of
Xxxxxxxx Soft-Teach, Inc., which is engaged in the business of developing,
marketing and selling training materials on videotape and multimedia platforms.
C. The Executive is presently in the employ of Xxxxxxxx Soft-Teach,
Inc. as its President.
D. The Company has offered to employ the Executive in the capacity of
Executive Vice President of the Company, and as President of Xxxxxxxx Soft-
Teach, Inc., a wholly owned subsidiary of ITC, and Executive wishes to be so
employed.
E. The parties hereto believe that it is in their best interests to
provide for the specific terms and conditions of employment and to impose
restrictions upon the parties in the event of the termination of the employment
relationship.
NOW, THEREFORE, in consideration of the mutual promises and covenants
as hereinafter set forth, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Employment. The Company agrees to employ the Executive as
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Executive Vice President of the Company and President of Xxxxxxxx Soft-Teach,
Inc. in accordance with the terms and conditions set forth in this Agreement.
The Executive shall have such specific duties as may be reasonably assigned to
him from time to time by the Board of Directors of the Company or the Chief
Executive Officer then in office, or their designee.
2. Acceptance and Standards. The Executive hereby accepts
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employment with the Company in accordance with the terms and conditions set
forth in this Agreement. During the term of this Agreement, and subject to the
provisions of Sections
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5 and 6 of this Agreement, the Executive agrees to devote his full business time
and services and his best efforts to the faithful performance of the duties
which may be reasonably assigned to him and which are consistent with his
position under Section 1 of this Agreement.
3. Compensation.
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a. In General. For all services rendered by the Executive under this
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Agreement, the Company shall provide the Executive with the various forms of
compensation and benefits set forth in this Section 3.
b. Basic Compensation. The Company shall, subject to the approval of
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the Board of Directors of the Company, pay the Executive a basic salary of
$125,000 per year, payable in periodic installments in accordance with the
Company's normal payroll practices for salaried employees.
c. Vehicle. The Executive shall receive the use of a Company vehicle
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selected by the Company, in its reasonable discretion. Alternatively, the
Executive shall receive a motor vehicle allowance of $500 per month.
d. Reimbursements of Expenses. The Company agrees to reimburse the
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Executive for all reasonable expenses (determined in the sole discretion of the
Company, and in accordance with corporate policies which may be promulgated in
the Employee Handbook or other published corporate policies) incurred by the
Executive in the course of the pursuance of his duties hereunder in accordance
with the Company's then current reimbursement policy.
e. Working Facilities. The Company, at its own cost, shall furnish
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the Executive with an office together with supplies, equipment, and such other
facilities and services suitable to his position and adequate for the
performance of his duties.
f. Fringe Benefits. Nothing herein shall affect the eligibility of
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the Executive to receive salary increases, bonus awards, stock option grants,
pension or profit-sharing agreements, employee benefits and the like which the
Company may, in its sole discretion, from time to time grant or make available
to the Executive. The Executive may participate in the Company's health and
medical plan, dental plan, 401(k) plan and Employee Stock Ownership Plan
("ESOP") if the Executive complies with the eligibility requirements thereunder
and otherwise in a manner consistent with the Company's then current normal
policies and procedures.
g. Discretionary Salary Increase and/or Bonus. Once each year,
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consideration shall be given by the Compensation Committee of the Board of
Directors, upon the recommendation of the CEO of the Company, to a salary
increase for the Executive, and if so, in what amount. The Executive shall, to
the extent permitted by the Board of Directors of the Company, also participate
in the Company's Incentive
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Compensation Plan commencing with the Company's fiscal year to end December 31,
1997 if the Executive complies with the eligibility requirements thereunder and
otherwise in a manner consistent with the Company's then current normal policies
and procedures.
h. Options. The Company shall grant to Executive in accordance with
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the terms and conditions of the Company's 1992 Key Employee Incentive Stock
Option Plan, the option to acquire 25,000 shares of the common stock of the
Company. The specific terms of the option grant shall be set forth in a separate
Stock Option Agreement to be executed by the Company and Executive. The options
granted herein shall be treated as incentive stock options to the extent they
qualify as such under section 422(d) of the Internal Revenue Code, as amended.
The granting of the foregoing option is contingent upon the qualification in the
State of California of the Company's 1992 Key Employee Incentive Stock Option
Plan, as amended (the "Plan"), if such qualification is needed, and the time for
such granting shall be on the later of the date of execution of this Agreement
or the date the Plan has been qualified in the State of California.
4. Term. The initial term of this Agreement shall begin on the
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Effective Date and shall continue thereafter for a period of two (2) years,
provided that neither Executive or the Company have given notice of termination,
or otherwise terminated this Agreement in accordance with the provisions of
section 5 of this Agreement.
5. Termination. Unless the parties otherwise agree in writing,
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termination of this Agreement in accordance with the provisions of this Section
shall also constitute termination of the Executive's employment with the Company
without the need for further notice or action by either party.
a. Incapacity. In the event the Executive shall be unable to
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perform his duties owing to illness or other incapacity for a period of more
than 90 consecutive days or an aggregate of 120 days in any 12 month period, the
Company may, at its option, by written notice addressed to the Executive, and
sent subsequent to such 90 days or 120 days, terminate this Agreement as of a
date to be specified in such notice, but not less than 30 days after the date of
the sending of such notice; provided, however, that if prior to the date
specified in such notice the Executive's illness or other incapacity shall have
terminated and he shall have satisfactorily taken up and performed his duties
under this Agreement, the notice of termination shall be disregarded, and this
Agreement shall continue in full force and effect. (See Sections 10 and 11 of
this Agreement for medical, sick leave, and disability benefits).
b. Death. In the event of the Executive's death during the term of
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his employment hereunder, this Agreement shall terminate as of the date of
death, and the Executive's spouse, or other such person whom the Executive shall
have designated in writing to the Company, shall be paid the unpaid portion, if
any, of the Executive's then prevailing salary prorated to the date of the
Executive's death. The Company at its own expense will provide life insurance
with benefits consistent with the Company's then current normal policies, if
any.
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c. Withdrawal from Business. The Company shall terminate this
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Agreement upon 60 days written notice to the Executive of a bona fide decision
by the Company to wind up its business and liquidate its assets (other than in
connection with a merger, consolidation, or other event specified in Section 7),
and all rights and obligations of both parties are hereto (except those under
Section 6.d. hereof) shall cease upon such termination. In this event, the
Executive shall be paid the unpaid portion, if any, of his then prevailing
salary prorated to the date of termination.
d. Termination by the Company for Cause. The Company may
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immediately terminate the Executive's employment for Cause (as hereinafter
defined) by giving the Executive notice in writing of such termination. For all
purposes under this Agreement, the term "Cause" shall mean (i) a breach by
Executive of any of his material obligations under this Agreement, including
without limitation Executive's obligations under Sections 5(f) and 6 hereof,
(ii) any act by the Executive which constitutes gross misconduct, (iii) a
violation of a federal or state law, rule or regulation applicable to the
business of the Company of a type that is materially adverse to the Company, or
(iv) the conviction of the Executive of, or entry by the Executive of a guilty
or no contest plea to, a felony. No compensation or benefits shall be paid or
provided to the Executive under this Agreement on account of a termination for
Cause, or for periods following the date when such a termination of employment
is effective.
e. Termination by the Company with Notice. The Company may
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terminate this Agreement for a reason not set forth in Section 5.a., 5.c., or
5.d. at any time upon 60 days written notice to the Executive, in which event
the Company shall pay to the Executive a termination allowance (the "Termination
Allowance") equal to ten (10) months' salary, based upon his then-prevailing
annual salary rate. The Termination Allowance may be paid, at the sole option of
the Company, in periodic installments over the first 10 months following
termination in accordance with the Company's regular payroll periods or over
such lesser period as the Company may determine.
f. Termination by the Executive with Notice. The Executive may
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terminate this Agreement at any time upon 120 days written notice to the
Company, in which event the Executive shall be paid through the date of
termination. During a period of 180 days following any such termination by the
Executive, the Executive agrees to provide such consulting services to the
Company as it may reasonably request, at such time or times within such period
as may be mutually agreed upon between the Company and the Executive. The
Executive shall be compensated for any such consulting services at 120% of the
daily rate when last employed by the Company plus reimbursement for any
reasonable out-of-pocket expenses incurred by the Executive in rendering such
consulting services.
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6. Outside Business Interests, Employee Solicitation, and Company
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Property.
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a. Without the written consent of the Board of Directors of the
Company, which consent shall not be unreasonably withheld, the Executive agrees
that during the term of this Agreement he will not be affiliated with any
competitor, supplier, or customer of the Company, as an officer, director,
partner, employee, agent, consultant (or similar capacity) or more than 1%
stockholder.
b. The Executive further agrees that during the term of this
Agreement he will not, directly or indirectly, encourage employees of ITC
(hereinafter meaning the Company and/or any of its subsidiary companies or
divisions now existing or hereafter formed) to leave the employ of ITC for the
purpose of seeking or obtaining employment in any other activity with which the
Executive intends to become affiliated.
c. The Executive further agrees that during a period of two (2) years
following the termination of employment, regardless of the reasons for such
termination, he will not, directly or indirectly, solicit, attempt to hire, or
encourage employees of ITC to leave the employ of ITC.
d. The Executive further agrees that during the term of this
Agreement and following the termination of his employment he will not, other
than in the normal and valid course of his employment with the Company, directly
or indirectly, take with him or use any ITC property, such as drawings, reports,
data or proposals, design or manufacturing information, wage and salary
information, records or the like relating or peculiar to ITC's products,
research or development or other activities, nor disclose to any others
information of a privileged nature.
e. The Executive further agrees that during the term of this
Agreement and during a period of two (2) years following the termination of his
employment, he will not, directly or indirectly, participate (on his own behalf
or on behalf of any other corporation, venture, or enterprise engaged in
commercial activities) in any proposals which were the subject of outstanding
bids or solicitations of ITC or of bids or solicitations in preparation by ITC
during his employment by the Company.
f. The Executive further agrees that in the event his employment is
terminated, and without regard for the reason for said termination, for a period
of one (1) year following such termination of employment, he will not engage,
directly or indirectly, as proprietor, partner, shareholder, director, officer,
employee, agent, consultant, or in any other capacity or manner whatsoever, in
any business activity competitive with the principal businesses of ITC, as
constituted during his employment and on the date of termination of his
employment. If any court of competent jurisdiction shall determine this covenant
to be unenforceable as to either the term or scope imposed above, then this
covenant nevertheless shall be enforceable by such court as to such shorter term
or lesser scope as may be determined by the court to be reasonable and
enforceable.
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g. The Executive further agrees that the provisions of this Section 6
are of vital importance to the Company and incorporate crucial Company policies
and a means of safeguarding valuable proprietary rights and interests of ITC.
Accordingly, the Executive agrees that the Company shall be entitled to
injunctive relief, in addition to all other remedies permitted by the law, to
enforce the provisions of this Section 6.
7. Merger or Acquisition. In the event the Company should
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consolidate with, or merge into another corporation, or transfer all or
substantially all of its assets to another entity, this Agreement shall continue
in full force and effect and be binding upon the Company's successor or
transferee.
8. Personnel Policies. To the extent not otherwise set forth
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herein, the terms and conditions of the Executive's employment and benefits
shall be governed by the then prevailing operating and personnel policies of the
Company. Executive hereby waives any past, present or future entitlement, if
any, to termination pay offered by the Company to its non-contract employees.
9. Vacations. The Executive shall be entitled to a reasonable
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vacation of not less than three (3) weeks per year, during each year of his term
of employment, as approved by the Chief Executive Officer of the Company.
10. Medical Expenses. Recognizing that the continued good health
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of the Executive and his family is of vital concern to the Company, since such
good health is directly related to the services which the Executive will be
expected to render to the affairs of the Company, the Executive agrees to
undergo a thorough and complete medical examination at least once during each
year of his term of employment. The executive further agrees to have the
examining physician report the findings of each examination to the Company, if
so requested. Moreover, in keeping with the Company's objectives in this regard,
the Company agrees to reimburse the Executive up to $1,000 during each calendar
year of this Agreement for those reasonable medical (including the
aforementioned annual medical examination), dental, and optical expenses
incurred by the Executive during each such year on behalf of himself and his
immediate family if such expenses are not otherwise reimbursed to the Executive
through insurance. The unused reimbursement in one calendar year will be carried
forward up to a maximum of $3,000; expenses not reimbursed in one calendar year
can be submitted for reimbursement in subsequent years. The Company, at its own
expense, shall also provide the Executive with medical insurance coverage under
its group medical insurance plan.
11. Sick Leave Benefits and Disability Insurance. During his absence
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owing to illness or other incapacity, the Executive shall be paid sick leave
benefits at his then prevailing salary rate, reduced by the amount, if any, of
Worker's compensation or disability benefits under the Company's group
disability insurance plan. The Company, at its own expense, shall provide the
Executive with disability benefits under its group disability insurance plan.
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12. Life Insurance. The Company, at its own expense, shall provide
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the Executive with life insurance benefits under its group life insurance plan.
13. Breach of Agreement. In addition to any other remedy available
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to the Company in the event of a breach by the Executive of any of the covenants
set forth in paragraphs 5(f) or 6, or in the event the Executive is terminated
for Cause pursuant to paragraph 5(d) of this Agreement, the Company's obligation
to pay the Executive any incentive payouts, deferred compensation, termination
allowance, or other benefits accrued but unpaid as of the date of such breach
(except any earned but unpaid wages and any vested rights the Executive may have
under a Company Profit Sharing Retirement Plan), if any, shall terminate, as
will the Executive's right to exercise any unexercised stock options.
14. Disputes and Arbitration. Any dispute arising out of or
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concerning this Agreement, which is not disposed of by agreement between the two
parties, shall be decided by an Arbitrator, chosen by the parties, and located
in Santa Xxxxx County, California. Either party may initiate an arbitration
action by a written notification to the other. The parties agree to choose the
Arbitrator within 15 days thereafter. The Arbitrator will follow the rules for
arbitration of the American Arbitration Association to the extent that said
rules are not inconsistent with the terms and conditions of this Section. The
decision of the Arbitrator shall be final and conclusive in the absence of
statutory grounds for setting it aside. Neither party shall be reimbursed for
the costs that he or it may sustain in connection with an arbitration under this
Agreement.
15. Alteration, Amendment, or Termination. No change or modification
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of this Agreement shall be valid unless the same is in writing and signed by the
parties hereto. No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the person against whom it is sought to be
enforced. The failure of any party at any time to insist upon strict performance
of any condition, promise, agreement, or understanding set forth herein shall
not be construed as a waiver or relinquishment of the right to insist upon
strict performance of the same condition, promise, agreement, or understanding
at a future time. The invalidity or unenforceability of any particular provision
of this Agreement shall not affect the other provisions hereof, and this
Agreement shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
16. Integration. This Agreement sets forth (and is intended to be
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an integration of) all of the promises, agreements, conditions, understandings,
warranties, and representations, oral or written, express or implied, among them
with respect to the terms of the employment relationship and there are no
promises, agreements, conditions, understandings, warranties, or
representations, oral or written, express or implied, among them with respect to
the terms of the employment relationship other than as set forth herein.
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17. Conflicts of Law. This Agreement shall be subject to and
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governed by the laws of the Commonwealth of Virginia irrespective of the fact
that one or more of the parties is now or may become a resident of a different
state.
18. Benefits and Burden. This Agreement shall inure to the benefit
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of, and shall be binding upon, the parties hereto and their respective
successors, heirs, and personal representatives. This Agreement shall not be
assignable by Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date and year first above written.
WITNESS/ATTEST: COMPANY:
INDUSTRIAL TRAINING CORPORATION
/s/ Xxxx X. Berkeley By: /s/ Xxxxx X Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President & Chief Financial Officer
EXECUTIVE:
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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