10.2 Employment Agreement, between the Registrant and Xxxxxx
Xxxxxxxxx
EMPLOYMENT AGREEMENT
This is an EMPLOYMENT AGREEMENT (the "Agreement") dated as of July
1,1995 by and between Camelot Corporation, a Colorado corporation (the
"Corporation"), and Xxxxxx Xxxxxxxxx (the "Executive").
Recitals
The Executive currently serves as Chairman and CEO of the company. The
Company desires the Executive to continue to serve as the Company's
Chairman and CEO, and the executive desires to continue to serve the
Company as its Chairman and CEO, on the terms and conditions set forth
in this Agreement.
NOW THEREFORE, the parties agree as follows:
1. Employment
The Company hereby employs the Executive as Chairman,
CEO and President of the Company, and the Executive hereby
accepts such employment, upon the terms and conditions set forth
herein.
2. Duties and Powers
2.1 Duties The Executive shall serve as Chairman, CEO and
President of the
Company and perform the duties of Chairman and President as defined in the
Bylaws of the Company in effect on the date of this Agreement. The Chairman
shall receive the compensation provided herein notwithstanding any future
amendment to the Bylaws of the Company which diminishes or alters the duties of
the chairman and President of the Company. The Executive shall not be required
to devote his entire working time to the business of the Company, and may devote
time to other business interests.
2.2 Chief Officer The Executive shall report only to the Board of Directors
of the Company (or, in the event the Company becomes a direct or
indirect subsidiary of any other corporation, to the Board of
Directors of the ultimate parent of the Company), and his powers and
authority shall be superior to those of any other officer or
employee of the Company or of any subsidiary of the company.
Subject to the authority of the Board of Directors of the Company,
the Executive shall have final responsibility for the conduct of the
business and affairs of the Company by and of its subsidiaries, and
the presidents and chief executive officers of all subsidiaries of
the company shall report to the Executive.
2.3 Service as Director If elected, the Executive shall serve as a director
of the Company without additional compensation, and shall have the
right at any time to serve as a director of any subsidiary of the
Company.
3. Term of AgreementThe initial term of employment under this Agreement shall
be ____ years commencing effective as of _____________________ (the "Effective
Date") unless sooner terminated pursuant to Section 6 below.
4. CompensationFor all services rendered by the Executive under this
Agreement, the Company shall pay the Executive an annual salary of
$_______________ (the "Base Salary") payable in equal monthly
installments. Executive shall also receive a cash bonus equal to 5%
of the Company's Annual Profits before Taxation payable within 30
days after the Company's Annual Profits before Taxation payable
within 30 days after the Company's financial year end. The Board
of Directors of the Company shall from time to time review the
compensation to be paid to the executive under this Agreement and
shall increase (but not decrease) the compensation in such amounts,
if any, as the Board of Directors determines.
5. Benefits, Expenses, Reimbursement: etc.
5.1 Benefit Plans The Company shall provide the Executive with such medical
and disability insurance, hospital insurance and group life insurance and other
benefits made available to executive level employees of the Company, subject to
the terms and conditions of such benefit plans and arrangements. The Company
shall pay for the existing Prudential Health Policy covering the Executive.
5.2 Expenses The Company shall pay all expenses incurred by the Executive
in furtherance or in connection with the business of the Company and its
subsidiaries and affiliates including, without limitation, all (i) travel and
living expenses while away from home on business or at the request and in the
service of the Company or its subsidiary or affiliate, and (ii) entertainment
expenses, upon submission of appropriate receipts or vouchers and in accordance
with the standard expense reimbursement policies of the Company as in effect
from time to time.If any such expenses are paid by the Executive, the Company
shall reimburse him promptly for those expenses.
5.3 Vacation The Executive shall be entitled each year to a vacation of
four weeks (twenty working days), during which time his compensation shall be
paid in full and such holidays and other non-working days as are consistent with
the policies of the Company for executive generally. All vacations shall be
scheduled so as to cause minimal interference with the operation of the Company.
If any untaken vacation days are outstanding at the end of a calendar year, then
the Company will pay Executive for such days. If the Executive's employment
under this Agreement is terminated pursuant to Section 6, the Executive shall be
entitled to payment for all untaken vacation days.
5.4 Death Benefits Subject to the provisions of Section 5.5(B) of this
Agreement, in the event of the Executive death during the term of this
Agreement, the Company shall pay to such beneficiaries as the Executive shall
designate in writing prior to the Executive's death, or if he fails to designate
a beneficiary, to the executive's spouse or, if none, to the Executive's estate,
and annual benefit equal to ______________ (the "Death Benefit"). The Death
Benefit shall be payable in equal monthly installments for a period of 4 years,
commencing on the first day of the next month following the month in which the
Executive's death occurs. Payments made pursuant to this Section 4 of this
Agreement.
5.5 Disability
A. The Executive shall be paid such benefits to which he is entitled under the
terms of such long-term disability insurance as the Company has provided
under Section 5.1 of this Agreement. If at any time during the term of
this Agreement (i) the Company is not providing the Executive with long-
term disability insurance coverage, or (ii) the amount of coverage provided
pays benefits less than an annual benefit to age 70 or 80% or more of the
Executive's Base Salary plus cash bonuses which the Executive is being paid
prior to the commencement of disability benefits, then the Executive Shall
be paid the amount specified in Section 5.5(B) of this Agreement.
B. Subject to the provisions of Section 5.5(A) of this Agreement, if during
the term of this Agreement (i) the Executive suffers any illness,
disability or incapacity which renders him unable to perform his duties
hereunder and such illness, disability or incapacity is deemed by a duly
licensed physician (who may be the Executive's person physician) to be
permanent, or (ii) the Executive is unable to render services to the
Company of the nature required by this Agreement because of illness,
disability or incapacity for a period of 90 days, whether or not such day s
are consecutive, during any year of the term hereof, then the Executive
shall continue to render advisory and consulting services as he is able and
as may be reasonable required y the Company. The Company shall pay to the
Executive compensation (Base Salary plus cash bonuses( in effect at the
time the event or condition desired in Section 5.5(B) (i) or (ii) (the
"Condition") above occur. The Disability Payment shall be paid to the
Executive in equal monthly installments until the Executive attains age 70.
Disability Payments shall commence on the first day of the month following
the month in which the Condition occurs and shall be made even if the
Executive is unable to
render any services to the Company.
C. In the event the Executive's death during the period in which Disability
Payments are to be paid, the |Company shall pay any remaining Disability
Payments due pursuant to Section 5.,5(B) to such beneficiaries as the
Executive designates in writing before his death, or upon his failure to
designate a beneficiary, to his surviving spouse or, if none, then to the
Executive's estate. Such payment shall be paid in lieu of any and all
payments provided for in Section 4 and 5.4 of this Agreement.
6. Termination The Executive's employment hereunder may be terminated only
under the following circumstances:
6.1 Cause The Company may terminate the Executive's employment hereunder for
cause upon not less than five days' prior written notice of such termination.
For purposes of this Agreement, the Company shall have "cause": to
terminate the Executive's employment hereunder upon (A) the continued
failure by the executive to substantially perform his duties hereunder
)other than any such failure resulting from the Executive's incapacity
due to physical or mental illness or the removal of Executive's office to
a location more than 5 miles form its current location), which failure
has not been cured (i) within three days after a written demand for
substantial performance is delivered to the Executive by the Company that
specifically identities the manner in which the company believes the
Executive has not substantially performed his duties (the "Three Day
Period"), or (ii) in the event such failure cannot be reasonable cured
within the Three Day Period, with in 20 days thereafter, provided that
the Executive promptly commences and thereafter diligently prosecutes the
cure thereof, or (B) the Executive's conviction of any criminal act or
fraud with respect to the Company. Notwithstanding the foregoing, the
Executives employment may not be terminated for cause unless and until
the Company has delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote or not less than 80 percent of the entire
Board of Directors
at a meeting of the Board (of which the Executive was given at least 20
days prior written notice and an opportunity, together with his counsel,
to be heard before the Board), finding that in the good faith opinion of
the Board, the Executive has not substantially performed his duties
(which failure shall be described in detail) and such failure has not
been cured within the period described in (ii) above. In addition, the
Company shall not have cause to terminate the Executive's employment
hereunder as a result of any event occurring prior to the date hereof and
previously disclosed to the Company. The burden of establishing cause
shall be upon the Company.
6.2 Termination by the Executive The Executive may terminate his
employment hereunder for "good reason" upon not less than five days'
prior written notice to the Company. For purposes of this Agreement,
"good reason" shall mean the continued failure by the Company to perform
its obligations under this Agreement (including any material change by
the Company yin the duties, responsibilities and powers of the Executive
as set forth herein or the removal of the Executive's office to a
location more than 5 miles form its current location) which failure has
not been cured (i) within three days after a written demand for
performance is delivered to the company by the Executive that
specifically identifies the manner in which the Executive believes the
Company has not performed its obligation (the "Three Day Period"), or
(ii) in the event such failure cannot be reasonable cur3ed within the
Three Day Period, within twenty (20) days thereafter provided that the
Company promptly commences and thereafter diligently prosecutes the cure
thereof. If the Executive terminates his employment under Clause 6.2
then he shall be paid a cash sum in accordance with Clause 6.3.C.
6.3 Change in Control
A. The Executive may terminate his employment under this Agreement at
any time for "good reason" (as defined below) after the date of a
Change in Control (as defined below) of the Company.
B. A "Change in Control" of the Company shall be deemed to have
occurred if:
(1) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") as in effect on the
date hereof). Other than the Executive or his family interests becomes
the beneficial owner, directly or indirectly, of common stock of the
Company representing 30% or more of the Company's then issued and
outstanding common stock; or
(2) individuals who constitute the Company's Board of Directors on the
Date hereof (the "Incumbent Board") cease for any reason to constitute at
least a majority thereof, provided that nay person becoming a Director
subsequent to the date hereof whose election, or nomination for election
by the Company's stockholders, was approved by a vote of at least a
majority of the Directors comprising the Incumbent Board (either by a
specific vote or by approval of the proxy statement of the Company in
which such person is named as a nominee for Director, without objecting
to such nomination) shall be, for purposes of this clause, considered as
though such person were a member of the Incumbent Board. For purposes of
this Section 6.2(a), "good reason" shall mean a determination solely be
the Employee, in good faith, that as a result of the e change of control
of the company he may be adversely affected (i) in carrying out his
duties and powers in the fashion he previously enjoyed or (ii) in his
future prospects with the Company.
C.If the Executive terminates his employment after a Change of Control of the
Company, he shall notify the Company in writing of the effective date of
the termination (the "Termination Date") and he shall be paid (i) the
Base salary and any bonuses payable to the Executive under this Agreement
through the termination Date, or (ii) an amount equal to the product of
(a) the annual Base Salary and bonus paid to the Executive during the
year preceding the Termination Date, multiplied by (b) five whichever of
(i) or (ii) is more. The amount payable under this Section 6.3(C) shall
be paid in a lump sum on or before the fifth day following the
Termination Date.
7. Interest and Counsel Fees
7.1 Interest All amounts payable to the Executive under this Agreement
shall be due and payable at the time specified herein and any payments which
is
not made within five days of the date of written demand shall be made with
interest on the amount due from the due date until paid in full at an
annual rate equal to 2% over the prime or base rate of interest generally
offered or charged by Citibank, N.A. to its commercial customers for
short-term unsecured loans, as in effect from time to time during the
period from such due date until the date such payment is made.
7.2 Counsel Fees The Company irrevocably authorizes the Executive from
time to time to retain counsel of his choice at the expense of the
Company to represent the Executive in connection with the Executive's
initiation or defense of any litigation, arbitration or other legal
action relating to this Agreement or any provision hereof (whether such
action is by or against the Company or any director, officer, stockholder
or other person affiliated with the Company, or in any jurisdiction).
Notwithstanding any existing or prior attorney-client relationship
between the Company and such counsel, the Company irrevocably consents to
the executive entering into any attorney-client relationship with such
counsel, and in that connection the Company and the Executive agree that
a confidential relationship shall exist between the Executive and the
Execute agree that a confidential relationship shall exist between the
Executive and such counsel. The reasonable fees and expenses of counsel
selected by the Executive shall be paid or reimbursed to the executive by
the Company on a regular, periodic basis upon presentation by the
Executive of a statement or statements prepared by such counsel in
accordance with its customary practices. Notwithstanding the preceding,
if it should be finally determined by judgment or order of a court of
competent jurisdiction (the time for the appeal of which judgment or
order shall have expired), that the Executive has not prevailed in any
such litigation, arbitration or other legal action, the Executive shall
promptly return to the Company, upon its demand, any amounts so advanced
in connection with such action together with interest thereof at the rate
provided in Section 7.1 above.
8. No Conflicting Commitments
8.1 Representation and WarrantyThe Executive represents and warrants that he
has no commitments or obligations of any kind whatsoever inconsistent
with this Agreement and is under no disability of any kind whatsoever
which would impair, infringe upon or limit Executive's ability to enter
this Agreement or to perform the services required hereunder.
8.2 Indemnification The Executive agrees to indemnify and hold the Company
harmless against any claim or other actions asserted against the company
based upon circumstances in which it is alluded that the Executive has
breached the warranty set forth in Section 8.1.
9. Governing Law This Agreement has been executed and delivered in the
State of Texas, and shall in all respects be interpreted, construed, and
governed by and in accordance with the law of the State of Texas.
Except as otherwise herein provided, all actions or proceedings
arising directly, indirectly or otherwise in connection without
of, ralted to, or from this Agreement shall be litigated
exclusively and only in courts having situs within the State of
Texas, and the parties hereby consent and submit to the
jurisdiction of nay state or federal court located in the State of
Texas. Notwithstanding the preceding, the Executive, at his sole
and exclusive option, exercisable y written notice given tot the
company at any time, any elect to summit any dispute arising under
this Agreement to resolution by arbitration held in Dallas County,
Texas in accordance with the rules of the American Arbitration
Association.
10. NoticesAll notices hereunder shall be in writing and personally
delivered
or mailed by registered or certified mail, return receipt requested, to
the following address:
If to the Company:
Camelot Place
00000 Xxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
If to the Executive:
Xxxxx Xxxxxxxxx
0000 Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
The Company or the Executive may hereafter designate another address to
the
other in writing for purposes or notices under this Agreement.
11. WaiversAny waiver by any party of any violation of, breach of or
default
under any provision of this Agreement by the other party shall not
be construed as, or constitute a continuing waiver so such
provision, or waiver of any other violation of , breach of or
default under any other provision of this Agreement.
12. Assignability This Agreement shall not be assignable by the
Company
without the written consent of Executive, except that if the Company
shall merge or consolidate with or into, transfer substantially all
of its assets to, another corporation or other form of business
organization, this Agreement shall be binding on the Executive and
be for the benefit of any binding upon the successor of the company
resulting from such merger consolidation or transfer without
Executive's consent, unless this Agreement is terminated pursuant to
Section 6.3(C). Executive may not assign, pledge, or encumber any
interest in this Agreement or nay part thereof without the express
written consent of the Company, this Agreement being
person to Executive.
13. Severabilty Each provision of this Agreement constitutes a
separate
and distinct undertaking convenant and/pr provision hereof. In the
event that
any provision of this Agreement shall finally be determined to be unlawful,
such
provision shall be deemed severed from this Agreement, but every other
provisions of this Agreement shall remain in full force and effect, and
in substitution for any such provision held unlawful, there shall be
substituted a provision of similar import reflecting the original intent
of the parties hereto to the extent permissible under the law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first set forth above written
CAMELOT CORPROAITON
By: ______________________________
Xxxxxxxx Xxxxxxxxxx
Title: Vice President and General Counsel
______________________________
