EXHIBIT A
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EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement",) is made and entered into as of ________,
2002 between Rainmaker Software, Inc., a corporation organized under the laws of
the State of Delaware ("ASA"), ASA International Ltd., a corporation organized
under the laws of the State of Delaware and the parent of ASA (the "Parent"),
and Xxxxx X. Xxxxxxxx, an individual residing at 00 Xxxxxxxxxx Xxx, Xxxxxx,
Xxxxx 00000 ("HWM").
The parties hereby agree as follows:
1. Employment:
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ASA hereby employs HWM, with such duties, authority and powers as are
determined from time-to-time by ASA. During the Term (as defined below) of this
Agreement, HWM shall not undertake any business activities which are (a)
competitive with those of ASA or (b) which would materially interfere with HWM's
obligation to devote substantially all of his time and efforts to the business
of ASA.
2. Term of Agreement:
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This agreement commences on the date hereof and terminates on December 31, 2002
(the "Term"). ASA shall have the right, on written notice to HWM, to terminate
HWM's employment prior to the end of the Term (a) immediately at any time for
Cause; or (b) at any time without Cause, provided ASA shall be obligated to
continue to pay to HWM his Salary (as defined below) and benefits for the
remainder of the Term. For purposes of this Agreement, "Cause" shall mean (i)
the falseness of any warranty or representation by HWM herein; (ii) fraud or
embezzlement involving assets of ASA, its customers, suppliers, or affiliates,
or other misappropriation of the ASA's assets or funds; (iii) HWM's conviction
of a criminal felony offense; (iv) the willful breach or habitual neglect of
HWM's obligations under this Agreement or his duties as an employee of ASA,
which breach or neglect is not cured within fifteen (15) days of notice of the
breach or neglect; or (v) habitual use of drugs.
3. Compensation:
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HWM's compensation shall be the sum of $10,000 per month ("Salary"),
payable in accordance with ASA's normal payroll practices. No severance pay or
similar payments shall be due to HWM upon the termination of this Agreement.
4. Miscellaneous
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i. During the Term of this Agreement ASA shall: (a) reimburse
HWM for the lease charges, gasoline and insurance costs associated with
operating HWM's currently leased automobile; (b) pay all health insurance
premiums for HWM and his spouse for coverage under ASA's group health insurance
policy and reimburse HWM for all medical expenses incurred during the Term of
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this Agreement which are not covered by such health insurance policy and which
are documented in writing to the reasonable satisfaction of ASA; and (c)
reimburse HWM for the expenses for telephone, internet access and similar
expenses reasonably necessary to permit HWM to work out of his home. During the
Term of this Agreement, HWM shall be eligible to participate in all other
benefit programs that are offered to employees of ASA generally.
ii. Upon the execution of this Agreement, ASA shall deposit the
sum of $74,000 into a separate interest-bearing bank account (the "Insurance
Fund", which shall include any interest earned on the funds held therein).
Beginning on January 1, 2003, ASA shall, at the election of HWM, either (a)
reimburse HWM or (b) pay to health insurance companies or medical providers as
directed by HWM, solely from the Insurance Fund, any amounts paid or payable by
or on behalf of HWM for health insurance and/or medical costs that are not
covered by health insurance. ASA shall provide such reimbursement or direct
payment to third parties upon receipt from HWM of documentation showing the
amount and nature of such costs, but ASA shall have no obligation or
responsibility to determine the accuracy of such documentation. ASA's
obligations hereunder shall be limited solely to reimbursing HWM or paying to
third parties on behalf of HWM as he directs, documented costs from the
Insurance Fund, and upon the distribution to HWM or payment to third parties of
all funds in the Insurance Fund, ASA shall have no further obligations or
responsibility to HWM hereunder. HWM shall have the sole right and obligation to
obtain health insurance for himself and his family beginning January 1, 2003,
subject to any rights HWM may have under COBRA to continue to participate in
ASA's group health insurance program. Notwithstanding anything to the contrary
in this Section 4(ii), HWM may at any time notify ASA to deliver to HWM all
funds then remaining in the Insurance Fund, and upon such delivery ASA shall
have no further obligations hereunder.
iii. HWM has and will acquire confidential information by virtue
of his employment with ASA. HWM agrees to keep such information confidential. In
the event of any breach, threatened or actual, by HWM, it is expressly agreed
that, as the only remedy available to ASA, ASA shall be entitled as a matter of
right to an injunction to prevent such breach without the necessity of posting a
bond. If HWM challenges the right of ASA to obtain an injunction and a Court of
competent jurisdiction determines that as a matter of law the remedy of
injunction is not available, or if HWM violates the terms of any such
injunction, then ASA may then seek damages.
iv. All inventions, tradenames, trademarks, copyrights,
improvements, processes, devices and computer software made, discovered or
developed by HWM during the term of his employment with ASA which may be
directly or indirectly useful in or which relate to any phase of the business in
which ASA is engaged, is actively planning to be engaged or in which ASA or its
predecessors have been engaged, shall be the sole and exclusive property of ASA.
Upon the request and at the expense of ASA, HWM shall make application in due
form to any domestic or foreign registry requested by ASA for patents,
trademarks, copyrights or similar protection and will assign to ASA all his
rights, title and interest to said inventions, improvements, processes, devices,
computer software, patents, trademarks, tradenames and copyrights, and shall
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execute any instruments necessary or which ASA may deem desirable and will
cooperate with ASA in all respects in connection with any continuations,
renewals or reissues of patents, trademarks, tradenames, copyrights or similar
protection or in the conduct of any proceedings or litigation in regard thereto.
Upon termination of employment with ASA, HWM agrees to deliver to ASA all
records, documents, data and computer media records of ASA in his possession or
custody. Notwithstanding the foregoing, upon termination of employment, HWM
shall have a perpetual non-exclusive free license to use, improve, sell or
license any of computer software, invention, process, device or improvement
developed by or under the direction of HWM during his employment with ASA, so
long as HWM's activities in this area are not competitive with the activities or
planned activities of ASA at the time of the termination of this employment.
5. Split Dollar Agreement. ASA acknowledges and agrees that ASA
has, by operation of law as a result of the merger of CompuTrac, Inc. with and
into ASA, succeeded to the interests of CompuTrac, Inc. under (i) that certain
Agreement and Conditional Collateral Assignment by and between HWM and
CompuTrac, Inc. dated as of February 1, 2001, a copy of which is attached hereto
as Exhibit A (the "Split Dollar Agreement") and (ii) that certain Split Dollar
Default Cure Agreement between HWM and CompuTrac, Inc. dated as of December 31,
2001, a copy of which is attached hereto as Exhibit B (the "Cure Agreement" and
with the Split Dollar Agreement, the "Life Insurance Agreements"). ASA does
hereby accept the terms, conditions, benefits and obligations of the Life
Insurance Agreements. Each reference in the Life Insurance Agreements to
CompuTrac, Inc. shall be deemed to be a reference to ASA from and after the date
hereof.
6. Assignment. This Agreement and the rights and obligations of
the parties hereto shall bind and inure to the benefit of any successor or
successors of ASA by reorganization, merger, or consolidation and any assignee
of all or substantially all of its business and properties, but, except as to
any such successor or assignee of ASA, neither this Agreement nor any rights or
benefits hereunder may be assigned by ASA or by HWM, except by operation of law.
7. Notices. Any notice which ASA is required to or may desire
to give HWM shall be given by personal delivery or registered or certified mail,
return receipt requested, addressed to HWM at HWM's address of record with ASA,
or at such other place as HWM may from time to time designate in writing. Any
notice which HWM are required or may desire to give to ASA hereunder shall be
given by personal delivery or by registered or certified mail, return receipt
requested, addressed to ASA at its principal office, or at such other office as
ASA may from time to time designate in writing. The date of personal delivery or
the date of mailing any notice under this Section 7 shall be deemed to be the
date of delivery thereof.
8. Waivers. If either party should waive any breach of any
provision of this Agreement, such party shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
this Agreement.
9. Complete Agreement; Amendments. The is the entire agreement
of the parties with respect to the subject matter hereof, superseding any
previous oral or written communications, representations, understandings, or
agreements between HWM and either ASA or CompuTrac, Inc. or any officer or
representative thereof. Any amendment to this Agreement or waiver by ASA of any
right hereunder shall be effective only if evidenced by a written instrument
executed by the parties hereto, upon authorization of ASA's Board of Directors.
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10. Headings. The headings of the Sections hereof are inserted
for convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning of this Agreement.
11. Counterparts. This Agreement may be signed in two counterparts,
each of which shall be deemed an original and both of which shall together
constitute one agreement.
12. Governing Law. This Agreement shall be governed by and
construed under Massachusetts law.
13. Guarantee. The Parent hereby guarantees the obligations of
ASA hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Rainmaker Software, Inc.
By: ____________________________
Name: ____________________________
Title: ____________________________
ASA International Ltd.
By: ____________________________
Name: ____________________________
Title: ____________________________
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Xxxxx X. Xxxxxxxx
