EXHIBIT 10.5
EMPLOYMENT AGREEMENT
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This AGREEMENT made this 15th day of May, 1998, between AXIOM INC. (the
"Company") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, (the "Employee").
WHEREAS, the Employee is desirous of obtaining the protections and benefits
contained in this Agreement, in return for which she agrees to the restrictive
covenants contained herein.
NOW THEREFORE in consideration of the facts, mutual promises, and covenants
contained herein, and intending to be legally bound hereby, the Company and the
Employee agree as follows:
1. Employment and Duties.
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The Company hereby employs the Employee and the Employee hereby accepts
employment by the Company, to serve as Senior Director, Finance
Administration, reporting to the Chief Financial Officer of the Company.
In such capacity, the Employee shall have such powers and shall perform
duties and services consistent with such capacity as may be assigned or
delegated to her from time-to-time by the President of the Company. The
Employee shall devote her full business time and attention to the business
and affairs of the Company exclusively and will use her best efforts to
promote the interests of the Company.
2. Compensation and Benefits.
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(a) The Company shall pay the Employee a base salary of $100,000 per
annum, payable in accordance with the regular payroll practices in
effect from time-to-time. This base salary will be reviewed annually
beginning on July 1, 1999.
(b) The Employee shall participate in any health insurance, life
insurance, accident or disability insurance, profit sharing, or
retirement plans or programs currently in effect or that may hereafter
be established by the Company, in accordance with and to the extent so
provided by these plans or programs, and to the extent that other
senior management employees are eligible to so participate. Nothing
in this Agreement shall preclude the Company from amending or
terminating any such insurance, program, or plan on the condition that
such amendment or termination is applicable to the Company's senior
management employees generally.
(c) The Employee shall be entitled to paid vacation per year in accordance
with the Company's general policy for senior management employees.
(d) The Employee shall be entitled to payments under an approved Incentive
Scheme as agreed by the Company.
(e) The Employee shall be entitled to maintain life insurance and long
term disability insurance, at the Company's expense, at the rate prior
to becoming an Employee of the Company.
(f) The Employee shall be entitled to receive, on or about the date
hereof, pursuant to the Company's Stock Incentive Plan (the "Plan")
and as set forth in the Axiom, Inc. Non-Qualified Stock Option
attached as Exhibit A hereto, options (the "Options"), exercisable for
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ten years from the date of grant, to purchase 40,000 shares of the
Company's common stock, $0.01 par value (the "Common Stock"). The
exercise price of each Options shall be equal to the per share fair
market value of the Common Stock on the date of grant of the Options,
as determined by the Compensation Committee of the Company's Board of
Directors in accordance with the Plan. The Options shall vest, in
three equal installments, at six months, one year and two years from
the date of grant. Upon the Employee's termination by the Company,
other than as a result of Employee's breach of this Agreement, the
Options shall vest in full and be exercisable for 90 days following
such termination. The issuance or resale of the shares of Common
Stock issuable upon exercise of the Options shall be registered with
the Securities and Exchange Commission to permit resales of such
shares by such time as the Options become exercisable.
3. Termination of Employment by the Company.
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Notwithstanding any other provision of this Agreement, Employee's
employment and any and all of the Company's obligations or liabilities
under this Agreement shall be terminated immediately, in any of the
following circumstances:
(a) Death:
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If the Employee dies, the further accrual of all payments and benefits
thereunder shall cease at the end of the month in which Employee's
death shall occur. All payments and benefits thereunder which have
accrued prior to the end of such month shall be promptly paid to the
executor or administrator of Employee's estate or pursuant to such
other specific directions as Employee has previously provided to the
Company in writing.
(b) Discharge for Cause:
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The Company may discharge the Employee at any time, for "cause", which
shall include but not be limited to criminal conduct (whether or not
related to the Employee's employment) other than minor traffic
offenses; any material breach by the Employee of this Agreement; gross
negligence or malfeasance by the Employee in the performance of her
duties for the Company; self-dealing; and/or any violation of any
expressed direction or any reasonable rule or regulation established
by the Company from time-to-time regarding the conduct of its
business.
(c) Discharge for Other Reasons:
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The Company may discharge the Employee at any time, for any or no
reason, by providing three (3) months' prior written notice. At the
Company's option, the Company may elect to sever the employment
relationship with the Employee at any time during this three (3) month
period, in which event the Employee shall be compensated for the
remainder of said three (3) month period.
4. Termination of Employment by the Employee:
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This Agreement may be terminated by the Employee upon not less than three
(3) months written notice to the Company. Upon the effective date of such
voluntary termination, any and all of the Company's obligations under this
Agreement shall terminate.
5. Proprietary Rights, Confidentiality, Non-Competition, Inventions, etc.
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The Company designs and manufactures various electronic equipment and
systems (hereinafter referred to as "Products"), and the Company is unique
in that it possesses expertise and "Know-How" in the design, manufacture,
and sale of Products. During the course of Employee's employment with the
Company she will have access to trade secrets, and proprietary and
confidential information pertaining to the Company and its Products, such
as, but not limited to, its short and long range business plans, its
processes and procedures, sales and distribution methods, suppliers and
customer lists, customer prospects, personnel records, research and
development projects, manufacturing processes, and "Know-How" (all the
foregoing hereinafter referred to as "Proprietary Information"). This
Proprietary Information was designed and developed by the Company, at great
expense and over lengthy periods of time, is unique, secret, and
confidential, and constitutes the exclusive property and trade secrets of
the Company, and any use of such property and trade secrets by the
Employee, other than for the sole benefit of the Company, would be wrongful
and would cause irreparable injury to the Company.
However, Proprietary Information shall not include information which has
become publicly known through no wrongful act of Employee, information
which has been rightfully received from a third party authorized to make
such information available without restriction, information which has been
approved for release by written authorization of the Company, and
information which must be disclosed pursuant to applicable law or in
connection with the enforcement of the Agreement.
(a) The Employee shall not, at any time, without the expressed written
consent of the Company, publish, disclose or divulge to any person,
firm, corporation, or use directly, indirectly or for her own benefit
or the benefit of any person or entity other than the Company, and
Proprietary Information, property, trade secrets, or confidential
information of the Company, its subsidiaries, and its affiliates
learned or obtained by the Employee from the Company, including, but
not limited to, the
information and things set forth above. This obligation shall be
continuing and shall not end with the cessation of Employee's
employment with the Company. Employee further agrees that, immediately
upon cessation of her employment with the Company, whether voluntary
or involuntary, she shall return to the Company all property of the
Company including, but not limited to, Proprietary Information.
(b) The Employee shall not, during the course of her employment and for
six (6) months after termination of Employee's employ:
(i) Directly or indirectly induce or attempt to influence any
employee of the Company to terminate her employment with the
Company, who was employed by the Company at the time of the
termination of Employee's employment or who terminated her
employment for any reason during the six (6) months preceding the
termination of Employee's employment with the Company.
(ii) Engage in (as a principal, partner, director, officer, agent,
employee, consultant, independent contractor, or otherwise) or be
financially interested in, any business which is involved in
business activities which are the same as, similar to, or in
competition with the Products. However, nothing contained in
this sub-paragraph shall prevent the Employee from being the
holder or beneficial owner for investment purposes only of any
class of equity securities of a company whose securities are
traded on a national securities exchange or NASDAQ if the
Employee (together with her spouse, children, siblings, and
parents) neither holds, nor is beneficially interested in, more
that five percent (5%) of any single class of the securities in
the company.
(c) The Employee shall not, for six (6) months after the cessation of her
employment, whether voluntary or involuntary, without the prior
written approval of the Company, either solely or jointly with, or as
manager or agent for, any person, corporation, trust, joint venture,
partnership, or other business entity, directly or indirectly, solicit
any customers or accounts that were customers or accounts (or legal
successors to customers or accounts) of the Company during any period
of time that the Employee was employed by the Company.
(d) The Employee shall fully and promptly disclose and assign to the
Company for its sole benefit, to be utilized in any manner it sees
fit, and without additional compensation, all ideas, discoveries,
inventions and improvements, patentable or not, and all writings
(including the copyright) which are made, conceived or reduced to
practice by the Employee, alone or with others, during or after
working hours, either on or off the job during the term of her
employment, or within six (6) months thereafter, which are related to
the Products, or which results from tasks assigned to the Employee by
the Company. The Company may, but it shall not be required to, obtain
at its own expense and for its sole benefit, patents or statutory
copyright for any patentable idea or copyrightable writing referred to
above, and she shall co-operate with the Company in executing any
documents required in connection therewith.
(e) Except as delegated to do so by the President of the Company, the
Employee shall not make any statements to the media concerning the
Company's business.
(f) The Employee acknowledges that the restrictions contained in this
Paragraph 5, in view of the nature of the business in which the
Company is engaged, are reasonable and necessary to protect the
legitimate interests of the Company, and that any violation of those
restrictions would result in irreparable injury to the Company. The
Employee therefore agrees that, in the event of her violation of any
of those restrictions, the Company shall be entitled to obtain from
any court of competent jurisdiction preliminary and permanent
injunctive relief against the Employee, in addition to damages from
the Employee and an equitable accounting of all commissions, earnings,
profits, and other benefits arising from such violation, which rights
shall be cumulative and in addition to any other rights or remedies to
which the Company may be entitled.
(g) The Employee agrees that if any or any portion of the foregoing
covenants or the application thereof, is construed to be invalid or
unenforceable, the remainder of such covenant or covenants or the
application thereof shall not be affected and the remaining covenant
or covenants will then be given full force and effect without regard
to the invalid or unenforceable portions. If any covenant is held to
be unenforceable because of the area covered, the duration thereof, or
the scope thereof, the Employee agrees that the Court making such
determination shall have the power to reduce the area and/or the
duration, and/or limit the scope thereof, and the covenant shall then
be enforceable in its reduced form.
6. Complete Understanding.
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This Agreement constitutes the complete understanding between the parties
in respect to the subject matter hereof and supersedes all prior and
contemporary agreements and understandings, inducements or conditions,
expressed or implied, written or oral, between the Company and the
Employee, and cannot be changed or modified except by written agreement
signed by the parties.
7. Binding Effect.
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This Agreement shall be binding upon and shall inure to the benefit of the
Company and its successors, and shall be binding upon the Employee, her
heirs and legal representatives.
8. No Assignment by the Employee.
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This Agreement is personal to the Employee, and the Employee may not assign
or delegate any of her rights or obligations hereunder without first
obtaining the express written consent of the Company.
9. Waiver of Rights.
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If in one or more instances either party fails to insist that the other
party perform any of the terms of this Agreement, such failure shall not be
construed as a waiver by such party of any past, present, or future right
granted under this Agreement; the obligations of both parties under this
Agreement shall continue in full force and effect.
10. Presumptions.
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This Agreement shall be interpreted without regard to any presumption or
rule requiring construction against the party who caused this Agreement to
be drafted.
11. Governing Law.
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This Agreement and all questions relating to its validity, interpretation,
performance, and enforcement shall be governed by and construed in
accordance with the law of New Jersey.
IN WITNESS WHEREOF, the parties hereto intending to be legally bound, have
executed this Agreement as of the date first above written.
AXIOM INC.
______________________________ By:______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President