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Exhibit 99.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT
(“Agreement”) is effective as of
October 15, 2007 (the “Commencement Date”) by
and between MPC Corporation
, a Colorado Corporation (the “Employer”
or “Company”) and John
Yeros (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
EMPLOYMENT AGREEMENT
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1.1
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Initial Term . The
initial term of employment hereunder shall commence on the
Commencement Date and shall continue until four (4) years
thereafter.
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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 Employment
Agreement. Except as otherwise explicitly
stated herein, the Executive agrees that upon the Commencement Date
of this Agreement, any prior employment agreement is superceded by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 Chief Executive Officer 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 $400,000, which
shall increase to $500,000 commencing January 1, 2008. 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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Intentionally deleted.
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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.
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3.5
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Company Transaction. In
the event of any “Company Transaction,” as defined in
the Employer’s 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, which shall include at
a minimum five (5) weeks vacation as part of Executive’s TOP
time. 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 twelve (12) 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,
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solicit, attempt to sell any products or services in
competition with those offered by the Employer to any person or
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 twelve (12) 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
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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 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)
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upon the sale by the Employer of substantially all
of its assets; or
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(ii)
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upon a decision by the Employer to terminate its
business and liquidate its assets; or
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(iii)
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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
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(iv)
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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 i
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