Exhibit 99.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT
(“Agreement”) is effective as of the 16th day of April
2007 (“Commencement Date”) by and between MPC
Corporation , a Colorado Corporation (the
“Employer” or “Company”) and Curtis
Akey (the “Executive”). In consideration of the
mutual covenants contained in this Agreement, the Employer agrees
to employ the Executive and the Executive agrees to be employed by
the Employer upon the terms and conditions hereinafter set
forth.
ARTICLE 1
TERM OF EMPLOYMENT AND TERMINATION
OF PRIOR OFFER LETTER
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1.1
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Initial Term . The initial term of employment hereunder shall
commence on April 16, 2007 and shall continue until April 15,
2008.
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1.2
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Renewal; Non- Renewal Benefits to the
Executive . At the end of
the initial term of this Agreement, and on each anniversary
thereafter, the term of the Executive’s employment shall be
automatically extended one additional year unless, at least thirty
(30) days prior to such anniversary, the Employer shall have
delivered to the Executive or the Executive shall have delivered to
the Employer written notice that the term of the Executive’s
employment hereunder will not be extended.
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1.3
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Termination of Prior Offer Letter.
The Executive and MPC Computers, LLC
(a Company subsidiary) previously entered into an Offer Letter
dated January 8, 2007, which described the terms and conditions of
Executive’s employment and certain compensation and other
matters to which he had the benefit of. Except as otherwise
explicitly stated herein, the Executive agrees that upon execution
of this Agreement, the Offer Letter is superceded by this Agreement
and is of no further force or effect.
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ARTICLE 2
DUTIES OF THE EXECUTIVE
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2.1
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Duties. The Executive shall be employed with the title
of Vice President, Chief Financial Officer, Treasurer and Secretary
with the responsibilities and authority assigned to Executive by
the Company’s Board of Directors (the “Board”)
that are customary to the powers and duties of similar executive
positions in companies that engage in business similar to that of
Employer. The Executive’s job description is attached as
Exhibit A.
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2.2
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Extent of Duties. Except as provided below, the Executive shall
devote his full-time, best efforts to the business of the Employer;
provided, however, that Executive agrees to disclose to the Board
in general terms any other business activities in which he is
involved, and Executive agrees that such business activities shall
not violate the provisions of Article 4 below.
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ARTICLE 3
COMPENSATION OF THE EXECUTIVE
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3.1
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Base Salary. As compensation for services rendered under this
Agreement, the Executive shall receive an annual base salary of
$200,000, commencing April 16, 2007. The Executive’s salary
is payable in accordance with the Employer’s normal business
practices. The Executive’s base salary may be increased from
time-to-time as determined by the Board in its sole
discretion.
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3.2
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Sign-On Bonus. Not applicable as Executive is already employed
by Company and/or one of its subsidiaries.
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3.3
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Bonus. The Executive shall participate in a bonus
compensation plan as approved by the Board, and attached as Exhibit
B.
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3.4
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Equity Compensation . The Executive shall receive restricted stock,
stock units or options hereinafter collectively referred to as
“Equity Grants” of the Employer’s common stock as
incentive compensation, from time-to-time, in amounts and terms and
conditions, determined by the Board in its sole discretion. The
Board has previously approved a grant of Restrict Stock Units to
Executive in connection with this prior appointment as an officer
of Company’s subsidiary MPC Computers, LLC. That prior grant
shall remain in effect subject to its terms.
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3.5
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In the event of any “Company
Transaction,” as defined in the MPC Corporation, 2004 Equity
Incentive Plan, any unvested Equity Grants shall be accelerated and
shall vest immediately prior to the occurrence of such Company
Transaction. In the event the Executive is terminated by the
Employer without “Cause” (as defined in section
5.1(d)), or by election of the Executive for “Cause”
(as set forth in section 5.1(a)), any unvested Equity Grants shall
be accelerated and shall vest immediately prior to the occurrence
of such termination.
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3.6
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Benefits. The Executive shall be entitled to paid vacation
and all paid holidays as customarily extended to executive
employees. The Executive shall be entitled to participate in all of
the Employer’s employee benefit plans and employee benefits,
including any retirement, pension, profit-sharing, insurance,
hospital or other plans and benefits which now may be in effect or
which may hereafter be adopted, it being understood that the
Executive shall have the same rights and privileges to participate
in such plans and benefits as any other executive employee during
the term of this Agreement. Participation in any benefit plans
shall be in addition to the compensation otherwise provided for in
this Agreement.
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3.7
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Expenses. The Executive shall be entitled to prompt
reimbursement for all reasonable expenses incurred by the Executive
in the performance of his duties hereunder, including but not
limited to, all expenses incurred in connection with travel, meals,
and lodging.
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ARTICLE 4
NON-COMPETITION; CONFIDENTIALITY; WORK FOR
HIRE
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4.1
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The Executive will offer to the Employer any
investment or other opportunity in the business of the type
conducted by the Employer of which the Executive may become aware
during the Executive’s employment under this Agreement. If
the Board refuses the opportunity to participate in the investment
or venture, the Executive may do so only if the Executive obtains
consent to do so from a majority of the directors.
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4.2
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The Executive shall not make investments in
companies involved in the business of the type conducted by the
Employer, as identified in writing from time to time by the Board,
at any time during the Executive’s employment with Employer;
provided this provision does not apply to investments in
broad-based mutual funds.
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4.3
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Except as provided in Sections 4.1 and 4.2
hereof, the Executive may not participate in the business of the
type conducted by the Employer at any time during the
Executive’s employment under this Agreement except through
and on behalf of the Company.
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4.4
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For a period of nine (9) months after the
termination or expiration of the Executive’s employment under
this Agreement, the Executive shall not: (i) own, manage, operate,
control, be employed by, participate in, or be connected in any
manner with the ownership, management, operation or control of any
business which is engaged in the business of the type conducted by
the Employer at any time during the Executive’s employment
with the Employer, (ii) call upon, solicit, attempt to sell any
products or services in competition with those offered by the
Employer to any person or
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firm that was solicited by the
Executive on behalf of the Employer; or (iii) solicit or otherwise
attempt to persuade any other employee to leave the employment of
the Employer. In the event of the Executive’s actual or
threatened breach of this paragraph, the Employer shall be entitled
to a preliminary restraining order and injunction restraining the
Executive from violating its provisions. Nothing in this Agreement
shall be construed to prohibit the Employer from pursuing any other
available remedies for such breach or threatened breach, including
the recovery of damages from the Executive. If the
Executive’s employment under this Agreement is terminated by
the Executive for any reason enumerated under (i) Section 5.1(a)
(by the Executive for Cause) or (ii) by the Employer for any reason
enumerated under Section 5.1(e) (by the Employer upon termination
of business), then this Section 4.4 shall terminate on the Date of
Termination and the nine (9) month period referred to in the first
sentence of this Section will not apply.
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4.5
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The Executive recognizes and acknowledges that
the information, business, list of the Employer’s customers
and any other trade secret or other secret or confidential
information relating to the Employer’s business as they may
exist from time to time are valuable, special and unique assets of
the Employer’s business. Therefore, the Executive agrees as
follows:
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(a)
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That the Executive will hold in strictest
confidence and not disclose, reproduce, publish or use in any
manner, whether during or subsequent to this employment, without
the express authorization of the Board, any information, business,
customer lists, or any other secret or confidential matter relating
to any aspect of the Employer’s business, except as such
disclosure or use may be required in connection with the
Executive’s work for the Employer.
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(b)
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That upon request or at the time of leaving the
employ of the Employer the Executive will deliver to the Employer,
and not keep or deliver to anyone else, any and all notes,
memoranda, documents and, in general, any and all material relating
to the Employer’s business.
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(c)
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That the Board may from time–to-time
reasonably designate other subject matters requiring
confidentiality and secrecy which shall be deemed to be covered by
the terms of this Agreement.
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In the event of a breach or
threatened breach by the Executive of the provisions of this
paragraph 4.5, the Employer shall be entitled to an injunction (i)
restraining the Executive from disclosing, in whole or in part, any
information as described above or from rendering any services to
any person, firm, corporation, association or other entity to whom
such information, in whole or in part, has been disclosed or is
threatened to be disclosed; and/or (ii) requiring that the
Executive deliver to the Employer all information, documents,
notes, memoranda and any and all other material as described above
upon the Executive’s leave of the employ of the Employer.
Nothing herein shall be construed as prohibiting the Employer from
pursuing other remedies available to the Employer for such breach
or threatened breach, including the recovery of damages from the
Executive.
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4.6
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The Executive agrees that any and all
inventions, discoveries, improvements, creations and/or other
information, whether patentable or unpatentable and whether or not
confidential (“work(s)”) which the Executive may
conceive or make during the Executive’s employment under this
Agreement that is, in any way, directly and indirectly, solely
and/or jointly, related to the business of the Employer shall be
deemed a “work made for hire” as that term is used in
Title 17 of the United States Code and shall be the sole and
exclusive property of the Employer. The Employer shall be owner of
all such work and deemed the author of such work with the full
right to apply for a patent, trademark or copyright in such work in
the United States and all foreign countries. The Executive shall
execute any and all documents requested by the Employer to effect
the foregoing. The Executive hereby grants, bargains, sells and
assigns all right, title and interest in any copyrighted and/or
proprietary work relating to the business of the Employer that the
Executive conceives or makes while employed by the Employer. To the
extent that work product of any work done by the Executive while
employed by the Employer is not deemed to be “work made for
hire,” the Executive hereby assigns all proprietary rights,
including patent and copyright, in these
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works to the Employer without
further compensation. The Executive further agrees to: (1) disclose
promptly to the Employer all such work which the Executive may make
solely, jointly or commonly with others; (2) assign all work to the
Employer; and (3) execute and sign any and all applications,
assignments or other instruments which the Employer may deem
necessary in its sole discretion in order to enable the Employer,
at its expense, to apply for, prosecute and obtain copyrights,
patents, trademarks or other proprietary rights in the Untied
States and foreign countries and in order to transfer to the
Employer all right, title and interest in said work.
ARTICLE 5
TERMINATION OF EMPLOYMENT
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5.1
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Termination. The Executive’s employment hereunder may
be terminated without any breach of this Agreement only under the
following circumstances:
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(a)
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By the Executive for Cause.
Upon the occurrence of any of the
following events, the Executive may terminate the Executive’s
employment under this Agreement for Cause by written notice to the
Employer:
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(i)
upon the sale by the Employer of
substantially all of its assets; or
(ii)
upon a decision by the Employer to
terminate its business and liquidate its assets; or
(iii) upon a material or reduction in the nature,
character, or responsibility of Executive’s position, title,
duties or responsibilities or a detrimental change in the
Executive’s compensation or benefits without the consent of
the Executive; or
(iv)
upon a Change in Control of the
Company. “Change in Control” means: (A) Any
“person” (as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)), other than a trustee or other
fiduciary holding securities of the Company under an employee
benefit plan of the Company, becomes the “beneficial
owner” (as defined in Rule 13d-3 promulgated under the
Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of (1) the outstanding shares of common
stock of the Company or (2) the combined voting power of the
Company’s then outstanding securities entitled to vote
generally in the election of directors; or (B) The Company (1) is
party to a merger, consolidation or exchange of securities which
results in the ho
(v)
upon the Company’s relocation
of Executive’s workplace to a location that is more than 30
miles from the Executive’s workplace as of the Commencement
Date, which is Boise, Idaho and Denver, Colorado; or
(vi)
upon the Employer’s violation
of the material provisions of this Agreement that is not cured by
Employer within 10 business days after receipt of written notice
from Executive.
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(b)
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Death . This Agreement shall terminate upon the death
of the Executive.
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(c)
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Disability. The Employer may terminate the Executive’s
employment under this Agreement upon the permanen
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