EXHIBIT NO. 6.3
EMPLOYMENT AGREEMENT BETWEEN
INTEGRATED SYSTEMS INTERNATIONAL, INC. AND
XXXX XXXXX DATED JANUARY 1, 2000.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
(000) 000-0000 Fax
xxxxx@xxxxxxxxxxx.xxx
[ LOGO ]
XXXXXXXX X. XXXXXXX
CHIEF EXECUTIVE OFFICER
Xx. Xxxx Xxxxx
Chairman
Planet Sweep, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
RE: Employment Agreement
Dear Aziz;
Reference is made herein to a certain Employment Agreement (the
"Agreement") between Integrated Systems International, Inc., now
legally known as Planet Sweep, Inc. (the "Company") and you dated
January 1, 2000.
The terms of the Agreement are amended as follows:
1. The term of the Agreement is changed to reflect a termination
date of December 31, 2005.
2. Compensation for the extended term shall be at the rate of
$240,000.00 per annum.
3. Paragraph 4(a) is amended to read: "The Employee shall receive
an annual cash bonus equal to one percent (1 %) of the net
revenues (EBITDA) of the Company."
4. Paragraph 4(d) is amended to read: "The Employee shall receive
on each anniversary date of this agreement three year options
to purchase 100,000 shares of the Company's Class A common
stock at an exercise price of one dollar ($1.00) per share.
5. Exhibit A to the Agreement shall be deemed null and void in
its entirety.
This letter shall be attached to the Agreement and become a permanent
part thereof.
IN WITNESS WHEREOF, the parties hereto have executed this amendment as
of the sixteenth day of June, 2000.
PLANET SWEEP, INC. EMPLOYEE
/s/ Xxxxxxxx X. Xxxxxxx /s/ Xxxx Xxxxx
-------------------------- -------------------------
Xxxxxxxx X. Xxxxxxx Xxxx Xxxxx
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, entered into as of the 1st day of January, 2000,
by and between Integrated Systems International, Inc., a Nevada corporation,
with its principal place of business at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Company"), and Xxxx Xxxxx, having an address at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Employee").
WITNESSETH:
WHEREAS, the Company wishes to employ the Employee upon the terms and
conditions contained herein; and
WHEREAS, the Employee wishes to accept employment with the Company upon
the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the parties hereto hereby
agree as follows:
1. EMPLOYMENT
The Company hereby employs the Employee and the Employee hereby accepts
employment upon the terms and conditions set forth herein.
2. TERM OF EMPLOYMENT
(a) Employee's employment hereunder shall be for a term
commencing on January 1, 2000 and ending on December 31, 2002, unless sooner
terminated as provided herein.
(b) The Company may terminate the Employee's employment
hereunder upon written notice at any time "For Cause". As used herein "For
Cause" shall mean (i) if Employee is convicted of a felony; (ii) if Employee
embezzles funds from the Company or (iii) if Employee materially breaches any of
his duties hereunder and fails to correct such breach within 20 days after
written notice thereof is given to Employee by the Company. Furthermore this
Agreement shall terminate immediately upon the death or permanent disability of
the Employee except that the shares of the Company's common stock referenced in
Section 4(d) shall vest in their entirety (without any forfeiture limitation)
upon Employee's death or permanent disability.
3. SERVICES TO BE RENDERED
(a) The Employee shall serve as the Company's Chairman of the
Board, President and Chief Executive Officer and shall perform duties consistent
with those of a Chairman of the Board, President and Chief Executive Officer and
such other duties as shall be designated from time to time by the Board of
Directors. The Employee will be one of the Company's principal operating
officers and will conduct and manage the Company's business in accordance with
policies established
by the Company from time to time. The precise services of the Employee may be
extended or curtailed from time to time at the direction and in the sole
discretion of the Company's Board of Directors. Unless prevented by death or
disability, the Employee shall devote his full business time, allowing for
vacations and national holidays, as set forth in Sections 5(d) and (e) hereof,
and illnesses, exclusively to the business and affairs of the Company, and shall
use his best efforts, skill and abilities to promote the Company's interests. As
an officer of the Company, the Employee shall be entitled to all rights of
indemnification as may be provided to officers by applicable Nevada law.
(b) Upon request of the Company's Board of Directors at any
time, Employee will resign as President and Chief Executive Officer of the
Company; and thereafter Employee shall serve solely as the Company's Chairman of
the Board upon all of the same terms and conditions (and with the same
compensation) set forth herein.
4. COMPENSATION
For the services rendered hereunder, the Company shall pay and
the Employee shall accept the following compensation:
(a) The Employee shall receive a base annual salary, payable
monthly, of $120,000 for the period commencing on the date hereof and ending on
June 30, 2000; $180,000 for the period commencing on July 1, 2000 and ending on
December 31, 2000; and $240,000 for the balance of the term hereof. Employee's
base salary shall be subject to increase pursuant to annual review by the Board
of Directors.
(b) The Employee shall receive any bonus or other compensation
as the Board of Directors may determine from time to time.
(c) The Employee's salary shall be payable subject to such
deductions as are then required by law and such further deductions as may be
agreed to by the Employee, in accordance with the Company's prevailing salary
payroll practices.
(d) The Employee shall receive performance based compensation
and stock options in accordance with Exhibit A attached hereto.
5. BENEFITS AND EXPENSES
(a) After three (3) months from the date hereof, the Company
shall provide the Employee with health insurance coverage that is comparable to
insurance benefits generally offered in the industry, at the Company's sole
expense.
(b) In the event that the Employee's employment by the Company
is terminated for any reason, the Employee shall have the right to purchase from
the Company any insurance policies on his life owned by the Company for a price
equal to the cash surrender value of the policies
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at the date of such termination, plus prepaid premiums, and to acquire any
disability income insurance policies maintained for him as provided in such
policies. The right to purchase shall be exercised by the Employee by written
notice to the Company not less than thirty (30) days after the date of such
termination, and the purchase price for such policies shall be paid by the
Employee to the Company.
(c) During the term of this Agreement, the Company shall, upon
presentation of proper vouchers, reimburse the Employee for all reasonable
expenses incurred by him directly in connection with his performance of services
as an officer and employee of the Company.
(d) The Employee shall be entitled to four (4) weeks of paid
vacation per calendar year. Vacation entitlements are non-cumulative except that
a total of up to ten (10) unused vacation days per year may be carried over into
the next calendar year.
(e) The Employee shall receive as paid days off all national
holidays, sick days, and personal days that the Company, pursuant to established
policy, recognizes and observes.
6. COVENANTS AND RESTRICTIONS
(a) The Employee hereby covenants and agrees that the Employee
will not at any time subsequent to the date hereof and continuing for a period
of two (2) years from the termination of the Employee, reveal, divulge, or make
known to any Person any Confidential Information (as hereinafter defined) made
known to the Employee or of which Employee has become aware, regardless of
whether developed, prepared, devised or otherwise created in whole or in part by
the efforts of the Employee and except to the extent so authorized in writing by
the Company in order to carry out the terms of this Agreement or except as
required by law. For purposes of this Agreement, the term "Confidential
Information" shall mean (i) any technical, scientific or engineering information
relating to the Company's products and/or services, (ii) information relating to
any customer of the Company, including without limitation, the names, addresses,
telephone numbers and sales records of, or pertaining to any such customer, and
(iii) price lists, methods of operation and other information pertaining to the
Company and which the Company, in its sole discretion, regards as confidential
and in the nature of trade secrets. Notwithstanding anything contained herein to
the contrary, Confidential Information as used herein shall not include that
which (i) was in the public domain prior to receipt hereunder in the same
context as the disclosure made hereunder, (ii) the Employee can show was in his
possession and in the same context prior to his receipt, (iii) subsequently
becomes known to the Employee as a result of disclosure by third parties not in
the course of this Agreement and as a matter of right and without restriction on
disclosure, or (iv) subsequently comes into the public domain in the same
context as the disclosure by the Company through no fault of the Employee.
(b) The Employee further covenants and agrees that the
Employee will retain all of such Confidential Information in trust for the sole
benefit of the Company, and will not divulge or deliver or show any of such
Confidential Information to any unauthorized person and will not make use of or
in any manner seek to turn to account any of such Confidential Information in an
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independent business however unrelated to the business of the Company. The
Employee further agrees that upon the termination of this Agreement or upon the
request of the Company, the Employee will either supply or return to the
Company, in accordance with the Company's request, all Confidential Information
in the Employee's possession, including, without limitation, all account lists,
records and data related to all customers of the Company.
(c) The Employee acknowledges that his breach or threatened
violation of any of the restrictive covenants contained in this Section 6 may
cause irreparable damage to the Company for which remedies at law would be
inadequate. The Employee further acknowledges that the restrictive covenants set
forth herein are essential terms and conditions of this Agreement. The Employee
therefore agrees that the Company shall be entitled to a decree or order by any
court of competent jurisdiction enjoining such threatened or actual violation of
any of such covenants. Such decree or order, to the extent appropriate, shall
specifically enforce the full performance of any such covenant by the Employee
and the Employee hereby consents to the jurisdiction of any such court of
competent jurisdiction. This remedy shall be in addition to all other remedies
available to the Company at law or equity. If any portion of this Section 6 is
adjudicated to be invalid or unenforceable, this Section 6 shall be deemed
amended to delete therefrom the portion so adjudicated, such deletion to apply
only with respect to the operation of this Section 6 in the jurisdiction in
which such adjudication is made.
7. PROPRIETARY PROPERTY
(a) The parties hereto hereby agree that Proprietary Property
(as hereinafter defined) shall be the sole and exclusive property of the
Company, except as provided below. For purposes hereof, the term "Proprietary
Property" shall mean inventions, discoveries, improvements and ideas, whether
patentable or not, made solely by the Employee or jointly with others, which
relate to the Company's business, including any of its products, services,
processes, technology, research, product development, marketing programs,
manufacturing operations, or engineering activities.
(b) The Employee shall promptly disclose to the Company in
writing all Proprietary Property, including those in the formative stages,
created during the term hereof, irrespective of whether created during normal
business hours. In addition, the Employee hereby agrees to promptly disclose to
the Company all Proprietary Property created subsequent to the date of
termination hereof, irrespective of the reasons for termination hereof, which
relate to or constitute an improvement on Proprietary Property or Confidential
Information, as defined herein.
(c) The Employee hereby agrees and acknowledges that the
Employee shall have no right, title or interest in or with respect to any
Proprietary Property, except as described below, and will during the term hereof
or at any time subsequent to the termination hereof, at the Company's request
and expense, execute any and all patent applications and assignments to the
Company and take any all action as required by the Company to perfect and
maintain the Company's rights and interests in and with respect to the
Proprietary Property.
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(d) The Employee hereby agrees to maintain written records
concerning the Proprietary Property and agrees to make those records available
to the Company at all times.
(e) Notwithstanding anything contained herein to the contrary,
Proprietary Property shall not include inventions or discoveries with respect to
which all of the following conditions apply:
(i) no equipment, supplies, facilities or
Confidential Information of the Company was used in
its development;
(ii) it does not relate the Company's business and/or
any proposed or planned products or services of the
Company, including any research and development
activities; and
(iii) it does not result from any work performed by
the Employee for the Company.
(f) During or subsequent to the Employee's employment by
Company, the Employee will not, directly or indirectly, lecture upon, publish
articles concerning, use, disseminate, disclose, sell or offer for sale any
Proprietary Property without the Company's prior written permission.
8. PRIOR AGREEMENTS
The Employee represents that he is not now under any written agreement,
nor has he previously, at any time, entered into any written agreement with any
person, firm or corporation, which would or could in any manner preclude or
prevent him from giving freely and the Company receiving the exclusive benefit
of his services.
9. NON-COMPETE
The Employee recognizes that the Proprietary Property is a special and
unique asset of the Company and needs to be protected from improper disclosure.
In consideration of the disclosure of the Proprietary Property to the Employee,
the Employee agrees and covenants that for a period of one (1) year following
the termination of his employment for any reason whatsoever, the Employee will
not directly or indirectly engage in any business that is competitive to the
Company. This covenant shall apply to the geographical area that includes the
entire world. "Directly or indirectly engaging in any business that is
competitive" includes, but is not limited to: (a) engaging in a business as an
owner, partner or agent, (b) becoming an employee of any third party that is
engaged in such business, (c) becoming interested directly or indirectly in any
such business, or (d) soliciting any customer of the Company for the benefit of
a third party that is engaged in such business. The Employee agrees that this
non-compete provision will not adversely affect the Employee's livelihood.
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10. MEDIATION AND ARBITRATION.
(a) If any dispute, controversy or claim arises in connection
with the performance or breach of this Agreement between the parties, a party
hereto may, upon written notice to the other parties, request facilitated
negotiations. Such negotiations shall be assisted by a neutral facilitator
acceptable to all parties and shall require the best efforts of the parties to
discuss with each other in good faith their respective positions and, respecting
their different interest, to finally resolve such dispute.
(b) A party may disclose any facts to the other parties or to
the facilitator which such party believes, in good faith, to be necessary to
resolve the dispute. All such disclosures shall be deemed in furtherance of
settlement efforts and thus confidential. Except as agreed to by all parties,
the facilitator shall keep confidential all information disclosed during the
negotiations. The facilitator shall not act as a witness for either party in any
subsequent arbitration between the parties.
(c) Such facilitated negotiations shall conclude within
sixty (60) days from receipt of the written notice, unless extended by mutual
consent of the parties. The costs incurred by each party in such negotiations
shall be borne by it. Any fees or expenses of the facilitator shall be borne
equally by all parties.
(d) If any dispute, controversy or claim arises in
connection with the performance or breach of this Agreement which cannot be
resolved by facilitated negotiations, then such dispute, controversy or claim
shall be settled by arbitration in accordance with the laws of the State of
New York and the then current Commercial Arbitration Rules of the American
Arbitration Association, except that no pre-hearing discovery will be
permitted unless specifically authorized by the arbitration panel. The
confidentiality provisions applicable to facilitated negotiations shall also
apply to arbitration.
(e) The award issued by the arbitration panel may be
confirmed in a judgment by any federal or state court of competent
jurisdiction. All reasonable costs of both parties, as determined by the
arbitration panel, including (i) the fees and expenses of the American
Arbitration Association and of the arbitration panel, and (ii) the costs,
including reasonable attorneys' fees, incurred to confirm the award in court,
shall be borne entirely by the non-prevailing party (to be designated by the
arbitration panel in the award) and may not be allocated between the parties
by the arbitration panel.
11. MISCELLANEOUS
(a) This Agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns, and upon the Employee,
his heirs, executors, administrators, legatees and legal representatives.
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(b) Should any part of this Agreement, for any reason
whatsoever, be declared invalid, illegal, or incapable of being enforced in
whole or in part, such decision shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and effect as if
this Agreement had been executed with the invalid portion thereof eliminated,
and it is hereby declared the intention of the parties hereto that they would
have executed the remaining portion of this Agreement without including therein
any portion which may for any reason be declared invalid.
(c) This Agreement shall be construed and enforced in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such State without application of the principles of
conflicts of laws of such State.
(d) This Agreement and all rights hereunder are personal to
the Employee and shall not be assignable, and any purported assignment in
violation thereof shall be null and void. Any person, firm or corporation
succeeding to the business of the Company by merger, consolidation, purchase of
assets or otherwise, shall assume by contract or operation of law the
obligations of the Company hereunder; provided, however, that the Company shall,
notwithstanding such assumption and/or assignment, remain liable and responsible
for the fulfillment of the terms and conditions of the Agreement on the part of
the Company.
(e) This Agreement constitutes the entire agreement between
the parties hereto with respect to the terms and conditions of the Employee's
employment by the Company, as distinguished from any other contractual
arrangements between the parties pertaining to or arising out of their
relationship, and this Agreement supersedes and renders null and void any and
all other prior oral or written agreements, understandings, or commitments
pertaining to the Employee's employment by the Company. This Agreement may only
be amended upon the written agreement of both parties hereto.
(f) Any notice, statement, report, request or demand required
or permitted to be given by this Agreement shall be in writing, and shall be
sufficient if delivered in person or if addressed and sent by certified mail,
return receipt requested, postage prepaid, to the parties at the addresses set
forth above, or at such other place that either party may designate by notice in
the foregoing manner to the other. If mailed as aforesaid, any such notice shall
be deemed given three (3) days after being so mailed.
(g) The failure of either party to insist upon the strict
performance of any of the terms, conditions and provisions of this Agreement
shall not be construed as a waiver or relinquishment of future compliance
therewith, and said terms, conditions and provisions shall remain in full
force and effect. No waiver of any term or any condition of this Agreement on
the part of either party shall be effective for any purpose whatsoever unless
such waiver is in writing and signed by such party.
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(h) The provisions of Sections 6, 7, 9, 10 and 11 of this
Agreement shall survive any termination of this Agreement.
(i) The headings of the paragraphs herein are inserted for
convenience and shall not affect any interpretation of this Agreement.
(j) Employee warrants and avers that he has not previously
been subject to arrest or otherwise convicted of any crime by a court of
competent jurisdiction within or without the United States of America and
further states that he has not been or is presently the subject of any criminal
investigation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
Employee Integrated Systems International, Inc.
/s/ Xxxx Xxxxx BY: /s/ Xxxx Xxxxxxxx
------------------------ ------------------------------
Xxxx Xxxxx Name: Xxxx Xxxxxxxx
Title: Treasurer
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EXHIBIT A
The Employee shall be entitled to an annual non-cumulative bonus during
the term hereof based upon the performance of the Company.
(i) The performance goal for the period ending December 31,
2000 is $1,000,000 of Profits (determined on an annualized
basis). Bonuses will be paid as provided herein if actual
performance are at least equal to such goal, as may be
adjusted below, for the period commencing on the Commencement
Date and ending December 31, 2000, determined on an annualized
basis. If the Company's Profits are at least equal to the goal
and below $1,500,000, the bonus will be $35,000 in cash and
five year options to acquire 20,000 shares of Company's Common
Stock at an exercise price equal to the Fair Market Value, as
defined below, of the Company's Common Stock at the date
following the date Company's Profits for such fiscal year are
released; in the event the Company's Profits are equal to or
greater than $1,500,000 and less than $2,000,000. Employee
shall be entitled to a bonus of $55,000 in cash and five year
options having terms identical to the above to acquire 40,000
shares of Company's Common Stock at an exercise price equal to
the Fair Market Value of the Company's Common Stock at the
date following the date the Company's Profits for such fiscal
year are released; and in the event the Company's Profits are
equal to or greater than $2,000,000, Employee shall be
entitled to a bonus of $70,000 in cash and five year options
having terms identical to the above to acquire 55,000 shares
of the Company's Common Stock at an exercise price equal to
the Fair Market Value of the Company's Common Stock date
following the date the Company's Profits for such fiscal year
are released. The aforementioned options, to the extent
granted, shall vest 33-1/3% at the date of grant and fifty
percent (50%) of the remainder on each of the second and third
anniversary thereof, subject to immediate vesting in the event
the Company dismisses Employee other than For Cause.
(ii) The performance goal for the period commencing January 1,
2001 and ending December 31, 2001 ("Second Year Performance
Goal") is the greater of $2,000,000 of Profits, as adjusted
below, and the actual amount of the Company's Profits
determined for purposes of (i) above, as adjusted below.
Bonuses will be paid as provided herein if actual performance
are at least equal to such goal, as may be adjusted below, for
the period commencing on January 1, 2001 and ending December
31, 2001. If the Company's Profits are at least equal to the
Second Year Performance Goal and below the greater of (x)
$2,500,000 and (y) the sum of $250,000 and the Second Year
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Performance Goal, the bonus will be $40,000 in cash and five
year options to acquire 30,000 shares of the Company's Common
Stock at an exercise price equal to the Fair Market Value, as
defined below, of the Company's Common Stock at the date
following the date Company's Profits for such fiscal year are
released; in the event the Company's Profits are equal to the
greater of (x) $2,750,000 and (y) the sum of $250,000 and the
Second Year Performance Goal but below the greater of (x)
$2,750,000 and (y) the sum of $500,000 and the Second Year
Performance Goal, Employee shall be entitled to a bonus of
$60,000 in cash and five year options having terms identical
to the above to acquire 45,000 shares of Company's Common
Stock at an exercise price equal to the Fair Market Value of
the Company's Common Stock at the date following the date the
Company's Profits for such fiscal year are released; in the
event the Company's Profits are equal to the greater of (x)
$2,750,000 and (y) the sum of $500,000 and the Second Year
Performance Goal and below the greater of (x) $3,000,000 and
(y) the sum of $750,000 and the Second Year Performance Goal,
Employee shall be entitled to a bonus of $65,000 in cash and
five year options having terms identical to the above to
acquire 50,000 shares of the Company's Common Stock at an
exercise price equal to the Fair Market Value of the Company's
Common Stock at the date following the date the Company's
Profits for such fiscal year are released; and in the event
the Company's Profits are equal to or greater than the greater
of (x) $3,250,000 and (y) the sum of $750,000 and the Second
Year Performance Goal, Employee shall be entitled to a bonus
of $70,000 in cash and five year options having terms
identical to the above to acquire 60,000 shares of Company's
Common Stock at an exercise price equal to the Fair Market
Value of the Company's Common Stock date following the date
the Company's Profits for such fiscal year are released. The
aforementioned options, to the extent granted, shall vest
33-1/3% at the date of grant and fifty percent (50%) of the
remainder on each of the second and third anniversary thereof,
subject to immediate vesting in the event the Company
dismisses Employee other than For Cause.
(iii) The performance goal for the period commencing January
1, 2002 and ending December 31, 2002 ("Third Year Performance
Goal") is the greater of $3,000,000 of Profits, as adjusted
below, and the actual amount of the Company's Profits
determined for purposes of (ii) above. Bonuses will be paid as
provided herein if actual performance is at least equal to
such goal, as may be adjusted below, for the period commencing
on January 1, 2001 and ending December 31, 2002. If the
Company's Profits are at least equal to the Third Year
Performance Goal and below the greater of (x) $3,500,000 and
(y) the sum of $500,000 and the Third Year Performance Goal,
the bonus will be $65,000 in cash and five year options to
acquire 50,000 shares
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of Company's Common Stock at an exercise price equal to the
Fair Market Value, as defined below, of the Company's Common
Stock at the date following the date the Company's Profits for
such fiscal year are released; in the event the Company's
Profits are equal to the greater of (x) $3,500,000 and (y) the
sum of $500,000 and the Third Year Performance Goal but below
the greater of (x) $3,750,000 and (y) the sum of $750,000 and
the Third Year Performance Goal, Employee shall be entitled to
a bonus of $70,000 in cash and five year options having terms
identical to the above to acquire 60,000 shares of Company's
Common Stock at an exercise price equal to the Fair Market
Value of the Company's Common Stock at the date following the
date Company's Profits for such fiscal year are released; in
the event the Company's Profits are equal to the greater of
(x) $3,750,000 and (y) the sum of $750,000 and the Third Year
Performance Goal and below the greater of the greater of (x)
$4,000,000 and (y) the sum of $1,000,000 and the Third Year
Performance Goal, Employee shall be entitled to a bonus of
$75,000 in cash and five year options having terms identical
to the above to acquire 65,000 shares of Company's Common
Stock at an exercise price equal to the Fair Market Value of
the Company's Common Stock at the date following the date
Company's Profits for such fiscal year are released; and in
the event the Company's Profits are equal to or greater than
(x) $4,000,000 and (y) the sum of $1,000,000 and the Third
Year Performance Goal, Employee shall be entitled to a bonus
of $85,000 in cash and five year options having terms
identical to the above to acquire 70,000 shares of Company's
Common Stock at an exercise price equal to the Fair Market
Value of the Company's Common Stock at the date following the
date Company's Profits for such fiscal year are released. The
aforementioned options, to the extent granted, shall vest
33-1/3% at the date of grant and fifty percent (50%) of the
remainder on each of the second and third anniversary thereof,
subject to immediate vesting in the event the Company
dismisses Employee for other than For Cause.
Profits shall mean the Company's pre-tax earnings without giving
effect to any tax loss carryforward, and determined in accordance with
generally accepted accounting principles. Profits shall be determined in good
faith by the Company's chief financial officer, within 90 days after the end
of the applicable fiscal year. Notwithstanding anything contained herein to
the contrary, the parties hereto acknowledge that (X) corporate overhead
(including, but not limited to, (i) compensation payable to the Company's
corporate officers and support staff providing services directly or
indirectly to the Company, (ii) legal and accounting fees not attributable to
the Company, and (iii) corporate office expenses shall be allocated among the
Company, its divisions and subsidiaries based on the gross revenues
attributable to each, and shall be an item of deduction in computing Profits
and (Y) earnings shall be computed without giving effect to
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extraordinary items of income and expense determined in accordance with
generally accepted accounting principles.
Fair Market Value shall be shall be determined by the Company's Board
of Directors in good faith, provided, however, if the shares of the Company's
Common Stock are listed on a national securities exchange or traded on the
over-the-counter market, the fair market value shall be the closing price as
reported by such exchange or market or, if no such closing price is reported,
the average of the closing bid and asked prices of the shares of Common Stock on
the over-the-counter market, as reported by the Nasdaq Stock Market, the
National Association of Securities Dealers OTC Bulletin Board or the National
Quotation Bureau, Inc., as the case may be, on the last day of the applicable
measuring period, or, if there is no closing price or bid or asked price on that
day, the closing price or average of the closing bid and asked prices on the
most recent day preceding the day on which the Option is granted for which such
prices are available.
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