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Exhibit 99.1
EXECUTION VERSION
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND
RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement")
is made and entered into as of October 1,
2005, between VERSO TECHNOLOGIES,
INC., a Minnesota corporation (the
"Company"), and STEVEN A. ODOM (the
"Employee"), an individual resident of the
State of Georgia.
RECITALS:
WHEREAS, the
Company and the Employee have entered into that certain
Executive Employment Agreement dated as of
September 29, 2000 (the "Original
Agreement"); and
WHEREAS, the
Company and the Employee desire to amend and restate the
Original Agreement as provided hereby;
NOW, THEREFORE,
in consideration of the premises and of the promises and
agreements hereinafter set forth, the
parties hereto, intending to be legally
bound, do hereby agree as to amend and
restate the Original Agreement as
follows:
1. TERM. The
term (the "Term") of this Agreement shall begin on the date
hereof (the "Effective Date") and shall
continue in effect until the termination
of the Employee's employment hereunder;
provided, however, the obligations and
covenants of the Company and the Employee
hereunder that are to be performed or
observed following such termination shall
survive the expiration of the Term.
2. EMPLOYMENT
AND DUTIES. The Employee shall serve as the Company's
Executive Chairman of the Board of
Directors of the Company (the "Board") for so
long as he is elected to serve as a member
of the Board, reporting only to the
Board, and, in addition to the duties
prescribed by the Company's Amended and
Restated Bylaws (which duties must be
consistent with the duties of Chairmen of
Boards of Directors generally), shall be
responsible for providing direction to
the Company with respect to mergers,
acquisitions and dispositions involving the
Company or any of its subsidiaries or
divisions, strategic relationships,
partnerships or joint ventures in which the
Company has or may have an interest
and strategic planning regarding the
Company's product and service offerings,
shall serve as the Chairman of and preside
at all meetings of the Board and the
Company's shareholders at which he is
present, and shall have such other powers
and duties as may from time to time be
prescribed by the Board and consented to
by the Employee, which consent shall not be
unreasonably withheld, delayed or
conditioned. The Company shall provide the
Employee with a private office,
secretarial and administrative assistance,
office equipment, supplies and other
facilities and services suitable to the
Employee's position.
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3.
COMPENSATION.
3.1 SALARY. For all services to be rendered by the Employee
pursuant
to this Agreement, the Company hereby
agrees to pay the Employee a base salary
at an annual rate per year of $450,000.00
(the "Base Salary"), payable in
accordance with the Company's payroll
practices in effect from time to time. The
Base Salary shall be reviewed from time to
time in the discretion of the
compensation committee of the Board. Any
increase in Base Salary or other
compensation granted by the compensation
committee of the Board shall in no way
limit or reduce any other obligation of the
Company hereunder. Once established
at an increased specified rate, the Base
Salary hereunder shall not thereafter
be reduced, and the term Base Salary used
in this Agreement shall refer to the
Base Salary as so increased.
3.2 BONUS. In addition to his Base Salary, in the discretion of
the
Board, the Employee may be awarded for each
calendar year during the Term an
annual bonus (an "Annual Bonus") either
pursuant to a bonus or incentive plan of
the Company or otherwise on terms no less
favorable than those awarded to other
executive officers of the Company.
4.
[INTENTIONALLY OMITTED].
5. BENEFITS. The
Employee shall be entitled to all benefits and conditions
of employment provided by the Company to
its executive officers, including,
without limitation, insurance,
participation in the Company's vacation policy,
and participation in any stock option or
incentive compensation plans, pension,
profit sharing or other retirement plans,
subject (in each case) to the terms of
such plans and any provisions, rules,
regulations and laws applicable to such
plans.
6.
[INTENTIONALLY OMITTED].
7. REIMBURSEMENT
FOR BUSINESS EXPENSES. The Employee shall be reimbursed
for all reasonable out-of-pocket business
expenses incurred by him in the direct
performance of his duties during his
employment with the Company pursuant to the
terms of this Agreement and in accordance
with the Company's policies in effect
from time to time. All requests for
reimbursement shall be substantiated by
invoices and other pertinent data
reasonably satisfactory to the Company.
8. PERFORMANCE.
Employee shall devote substantially all of his working time
and efforts to the business and affairs of
the Company and to the diligent
performance of the duties and
responsibilities assigned to him pursuant to this
Agreement, except for vacations, weekends
and holidays. Notwithstanding the
foregoing, the Employee may invest in
stocks, bonds, securities, commodities,
real estate or other forms of investment
for his benefit and that of Employee's
family and manage such investments, and
render charitable, civic and outside
board services so long as such services do
not materially interfere with the
Employee's ability to discharge his duties,
including without limitation, such
outside services as Employee is currently
performing.
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9.
NON-DISCLOSURE OF PROPRIETARY INFORMATION; NON-COMPETITION;
NON-SOLICITATION.
9.1. CONFIDENTIAL INFORMATION; TRADE SECRETS. As used in this
Agreement, the term "Confidential
Information" shall mean valuable, non-public,
competitively sensitive data and
information relating to the Company's business
or the business of any entity affiliated
with the Company, other than Trade
Secrets (as defined below). "Confidential
Information" shall include, among
other things, information specifically
designated as a Trade Secret that is,
notwithstanding the designation, determined
by a court of competent jurisdiction
not to be a "trade secret" under applicable
law. As used in this Agreement, the
term "Trade Secrets" shall mean information
or data of or about the Company or
any entity affiliated with the Company,
including, without limitation, technical
or non-technical data, formulas, patterns,
compilations, programs, devices,
methods, techniques, drawings, processes,
financial data, financial plans,
product plans, or lists of actual or
potential customers or suppliers, that (i)
derive economic value, actual or potential,
from not being generally known to,
and not being readily ascertainable by
proper means by, other persons who can
obtain economic value from their disclosure
or use; and (ii) are subject of
efforts that are reasonable under the
circumstances to maintain their secrecy.
To the extent that the foregoing definition
is inconsistent with a definition of
"trade secret" under applicable law, the
foregoing definition shall be deemed
amended to the extent necessary to render
it consistent with applicable law.
9.2. NON-DISCLOSURE. The Employee will be exposed to Trade Secrets
and
Confidential Information as a result of his
employment by the Company as
provided in this Agreement. The Employee
acknowledges and agrees that any
unauthorized disclosure or use of any of
the Trade Secrets or Confidential
Information of the Company would be
wrongful and would likely result in
immediate and irreparable injury to the
Company. In consideration of the
Employee's right to employment (or
continued employment) under the terms of this
Agreement, except as appropriate in
connection with the performance of his
obligations under this Agreement, the
Employee shall not, without the express
prior written consent of an executive
officer of the Company other than the
Employee, redistribute, market, publish,
disclose or divulge to any other person
or entity, or use or modify for use,
directly or indirectly, in any way for any
person or entity (i) any Confidential
Information during the Term of this
Agreement and for a period of two (2) years
after the final date of the Term of
this Agreement; and (ii) any Trade Secrets
at any time (during or after the Term
of this Agreement) during which such
information or data shall continue to
constitute a "trade secret" under
applicable law. The Employee agrees to
cooperate with any reasonable
confidentiality requirements of the Company. The
Employee shall immediately notify the
Company of any unauthorized disclosure or
use of any Trade Secrets or Confidential
Information of which the Employee
becomes aware.
9.3. NON-COMPETITION. The Employee shall not, either directly
or
indirectly, alone or in partnership,
manage, control, operate or own any
business that is substantially similar to
the business of the Company during the
Term hereof in any geographic area of the
United States of America (a "Competing
Business") during the term
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hereof and, if the Employee's employment
with the Company shall be terminated
pursuant to Section 13.1 or Section 13.3
hereof, during the one (1) year period
following the term hereof, except that the
Employee may own up to three percent
(3%) of the outstanding securities of a
Competing Business the securities of
which are registered with the Securities
and Exchange Commission if such
Competing Business is subject to the
periodic reporting requirements of the
Securities Exchange Act of 1934, as amended
(the "1934 Act").
9.4. NON-SOLICITATION. For a period of one (1) year immediately
following any termination of the Employee's
employment (other than a termination
pursuant to Section 13.2. or Section 13.4
hereof), the Employee will not
solicit, or participate in any solicitation
of, the customers, suppliers,
employees or representatives of the Company
(or any of its subsidiaries or
affiliated companies) to breach any
contract with the Company, terminate any
relationship with the Company or leave the
Company. For purposes of this
Agreement, customers shall be limited to
actual customers or actively-sought
prospective customers of the Company or any
subsidiary or affiliate of the
Company with whom the Employee has had
substantial contact during the Term of
this Agreement.
10. CERTAIN
DEFINITIONS.
10.1. ACCRUED COMPENSATION. For purposes of this Agreement,
"Accrued
Compensation" shall mean an amount which
shall include all amounts earned or
accrued through the "Termination Date" (as
hereinafter defined) but not paid as
of the Termination Date, including, without
limitation, (i) Base Salary, (ii)
reimbursement for reasonable and necessary
expenses incurred by the Employee on
behalf of the Company during the period
ending on the Termination Date, (iii)
vacation pay, (iv) bonuses, including,
without limitation, an amount in cash
equal to the product of (a) the Annual
Bonus, if any, which otherwise would have
been payable to the Employee for the
calendar year in which the Termination Date
occurs pursuant to Section 3.2 hereof had
the Employee's employment with the
Company not terminated, and (b) a fraction,
the numerator of which equals the
number of days in such calendar year prior
to the Termination Date and the
denominator of which equals 365, and
incentive compensation, and (v) all other
amounts to which the Employee is entitled
under any compensation plan of the
Company at the times such payments are
due.
10.2. BASE AMOUNT. For purposes of this Agreement, "Base Amount"
shall
mean the Employee's annual Base Salary at
the highest rate in effect on, or at
any time during the ninety (90) day period
prior to, the Termination Date and
shall include all amounts of the Employee's
Base Salary that are deferred under
any qualified and non-qualified employee
benefit plans of the Company or any
other agreement or arrangement.
10.3. CAUSE. For purposes of this Agreement, a termination of
employment is for "Cause" if the Employee
has been convicted of a felony or if
the termination is evidenced by a
resolution adopted in good faith by all of the
non-employee members of the Board that the
Employee (i) intentionally and
continually failed substantially to perform
his reasonably assigned duties with
the Company (other than a failure resulting
from the
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Employee's incapacity due to physical or
mental illness or from the Employee's
assignment of duties that would constitute
"Good Reason" (as hereinafter
defined)) which failure continued for a
period of at least thirty (30) days
after a written notice of demand for
substantial performance has been delivered
to the Employee specifying the manner in
which the Employee has failed
substantially to perform, or (ii)
intentionally engaged in illegal conduct or
gross misconduct which results in material
economic harm to the Company;
provided, however, that (A) where the
Employee has been terminated for Cause
because a felony prosecution has been
brought against him and no conviction or
plea of guilty or plea of nolo contendere
or its equivalent results therefrom,
then said termination shall no longer be
deemed to have been for Cause and the
Employee shall be entitled to all the
benefits provided by Section 11.1(i)
hereof from and after the date on which the
prosecution of the Employee has been
dismissed or a judgement of acquittal has
been entered, whichever shall first
occur; and (B) no termination of the
Employee's employment shall be for Cause as
set forth in clause (ii) above until (x)
there shall have been delivered to the
Employee a copy of a written notice setting
forth that the Employee was guilty
of the conduct set forth in clause (ii) and
specifying the particulars thereof
in detail, and (y) the Employee shall have
been provided an opportunity to be
heard in person by the Board (with the
assistance of the Employee's counsel if
the Employee so desires). No act, or
failure to act, on the Employee's part
shall be considered "intentional" unless
the Employee has acted or failed to act
with a lack of good faith and with a lack
of reasonable belief that the
Employee's action or failure to act was in
the best interests of the Company.
Any act, or failure to act, based upon
authority given pursuant to a resolution
duly adopted by the Board or upon the
instructions of any senior officer of the
Company or based upon the advice of counsel
for the Company shall be
conclusively presumed to be done, or
omitted to be done, by the Employee in good
faith and in the best interests of the
Company. Any termination of the
Employee's employment by the Company
hereunder shall be deemed to be a
termination other than for Cause unless it
meets all requirements of this
Section 10.3.
10.4. CHANGE IN CONTROL. For purposes of this Agreement, a "Change
in
Control" shall have occurred if:
(i) a majority of the directors of the Company shall be persons
other than persons: (A) for whose election
proxies shall have been solicited by
the Board, or (B) who are then serving as
directors appointed by the Board to
fill vacancies on the Board caused by death
or resignation (but not by removal)
or to fill newly-created directorships;
(ii) a majority of the outstanding voting power of the Company
shall have been acquired or beneficially
owned (as defined in Rule 13d-3 under
the 1934 Act or any successor rule thereto)
by any person (other than the
Company, a subsidiary of the Company or the
Employee) or Group (as defined
below), which Group does not include the
Employee; or
(iii) there shall have occurred:
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(A) a merger or consolidation of the Company with or into
another corporation (other than (1) a
merger or consolidation with a subsidiary
of the Company or (2) a merger or
consolidation in which (a) the holders of
voting stock of the Company immediately
prior to the merger as a class continue
to hold immediately after the merger at
least a majority of all outstanding
voting power of the surviving or resulting
corporation or its parent and (b) all
holders of each outstanding class or series
of voting stock of the Company
immediately prior to the merger or
consolidation have the right to receive
substantially the same cash, securities or
other property in exchange for their
voting stock of the Company as all other
holders of such class or series);
(B) a statutory exchange of shares of one or more classes or
series of outstanding voting stock of the
Company for cash, securities or other
property;
(C) the sale or other disposition of all or substantially
all of the assets of the Company (in one
transaction or a series of
transactions); or
(D) the liquidation or dissolution of the Company;
unless more than twenty-five percent (25%)
of the voting stock (or the voting
equity interest) of the surviving
corporation or the corporation or other entity
acquiring all or substantially all of the
assets of the Company (in the case of
a merger, consolidation or disposition of
assets) or of the Company or its
resulting parent corporation (in the case
of a statutory share exchange) is
beneficially owned by the Employee or a
Group that includes the Employee.
10.5. GROUP. For purposes of this Agreement, "Group" shall mean
any
two or more persons acting as a
partnership, limited partnership, syndicate, or
other group acting in concert for the
purpose of acquiring, holding or disposing
of voting stock of the Company.
10.6. DISABILITY. For purposes of this Agreement, "Disability"
shall
mean a physical or mental infirmity which
impairs the Employee's ability to
substantially perform his duties with the
Company for a period of one hundred
eighty (180) consecutive days and the
Employee has not returned to his full time
employment prior to the Termination Date as
stated in the "Notice of
Termination" (as hereinafter defined).
10.7. GOOD REASON.
10.7.1. For purposes of this Agreement, "Good Reason" shall
mean
a good faith determination by the Employee,
in the Employee's
