Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT effective this _1st_ day of June, 2005 by and between
TSR Inc., a Delaware corporation, with offices at 000 Xxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 (hereinafter called the "Corporation") and Xxxx X.
Xxxxxxx, residing at xxxxx., xxxxx, xx xxx (hereinafter called "Executive").
W I T N E S S E T H :
WHEREAS, the Corporation desires to employ Executive and Executive is
willing to undertake such employment on the terms and subject to the conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties hereto agree as follows:
1. The Corporation hereby employs Executive as Vice President of
Finance and Controller of the Corporation or such other position as he may be
elected or appointed to by the Corporation's Board of Directors, to perform
such supervisory or executive duties on behalf of the Corporation as the Board
of Directors of the Corporation may from time to time determine.
2. Executive hereby accepts such employment and agrees that throughout
the period of his employment hereunder, he will devote his full time, attention,
knowledge and skills, faithfully, diligently and to the best of his ability, in
furtherance of the business of the Corporation and to promote the interest of
the Corporation, will perform the duties assigned to him pursuant to Paragraph
1 hereof, subject, at all times, to the direction and control of the Board of
Directors of the Corporation and the Corporation's President. Executive shall
at all times be subject to, observe and carry out such rules and regulations as
the Board of Directors or President of the Corporation may from time to time
establish. During the period of Executive's employment hereunder, Executive
shall not be entitled to additional compensation for serving in any office of
the Corporation or any of its subsidiaries to which he is elected, including
without limitation as a director of the Corporation or any of its subsidiaries.
3. Executive shall be employed for a term of five (5) years commencing
as of the 1st day of June, 2005 and ending on the 31st day of May, 2010
(the "Term"), unless his employment is terminated prior to the expiration of
said five (5) year term pursuant to the provisions hereof.
4. As full compensation for his services hereunder, the Corporation will
pay to Executive a salary at the rate of One Hundred Fifty Thousand ($150,000)
Dollars per annum, payable in equal installments no less frequently than
semi-monthly. The annual salary shall be subject to increase in the discretion
of the President of the Corporation. In addition, Executive shall be entitled to
a discretionary bonus, in an amount determined in good faith by the President of
the Corporation, based on standards relating to the Executive's performance and
the Corporation's performance determined in good faith by the President of the
Corporation. The bonus provided for hereunder shall be payable by the
Corporation to Executive within 30 days of the end of the fiscal year to which
such bonus relates. In addition to such compensation, Executive shall be
entitled to participate, to the extent he is eligible under the terms and
conditions thereof, in any pension, profit-sharing, retirement, hospitalization,
insurance medical services, or other employee benefit plan generally available
to executives of the Corporation which may be in effect from time to time during
the period of his employment hereunder. The Corporation shall be under no
obligation to institute or continue the existence of any such employee benefit
plan. Employee shall also continue to be entitled to a leased car comparable to
the car which he is currently provided. Executive shall be entitled to four
weeks of paid vacation for each year.
5. The Corporation shall reimburse Executive for all expenses reasonably
incurred by him in connection with the performance of his duties hereunder in
the business of the Corporation, upon the submission to the Corporation of
appropriate vouchers therefor and approval thereof by the President of the
Corporation; provided, however, that no reimbursement has been made by the
Corporation for expenses substantially disallowed, Executive shall reimburse the
Corporation for any such amounts. Such reimbursements shall be subject to the
expense reimbursement policies of the Corporation which are in effect from time
to time.
6. Notwithstanding any provision contained herein to the contrary, the
Corporation may terminate Employee's employment hereunder at any time for
"Cause" as such term has been interpreted pursuant to the decisions of the
courts of the State of New York which have interpreted the meaning for "Cause"
for justifiable termination pursuant to employment arrangements generally. The
Corporation may terminate such employment without Cause at any time; provided
however, the Corporation shall continue to pay the Employee his base
compensation, which shall not exceed the rate of $150,000 per annum, during the
balance of the term. In the event of a termination of Employe's employment
Employee shall be eligible to continue to receive, at the Company's expense, all
benefits provided by the Corporation as enumerated in Paragraph 4, above.
7. CHANGE IN CONTROL. (a) Executive shall have the right to terminate
hisemployment hereunder following a Change in Control. If Executive elects to
terminate his employment hereunder, he shall do so by written notice given
within 90 days after the event constituting a Change in Control.
(b) For purposes of this Agreement "Change in Control" shall mean that any
of the following events has occurred:
(i) An acquisition (other than directly from the Corporation) of
any voting securities of the Corporation (treating all classes
of outstanding voting securities or other securities
convertible into voting securities as if they were converted
into voting securities) (the "VOTING SECURITIES") by any
"person", "entity" or "group of affiliated persons" (as such
terms are used for purposes of Section 13(d) or 14(d)
(collectively, "PERSONS") of the Securities Exchange Act of
1934, as amended (the "1934 Act")(other than Xxxxxx Xxxxxx or a
group which includes Xxxxxx Xxxxxx) immediately after which
such Person has "Beneficial Ownership" (within the meaning of
Rule 13d-3 promulgated under the 1934 Act and irrespective of
any vesting or waiting periods) of twenty (20%) percent or more
of the combined voting power of the Corporation's then
outstanding Voting Securities; unless immediately after such
acquisition Xxxxxx Xxxxxx beneficially owns a greater
percentage of the Voting Securities than such Persons.
(ii) An acquisition of any voting securities of the corporation
(treating all classes of outstanding voting securities or other
securities convertible into voting securities as if they were
converted into voting securities) (the "VOTING SECURITIES") by
any "person," "entity" or "group of affiliated persons" as such
terms are used for purposes of Section 13(d) or 14(d)
(collectively, "PERSONS") of the Securities Exchange Act of
1934,as amended the "1934 Act")(other than Xxxxxx Xxxxxx or a
group which includes Xxxxxx Xxxxxx) immediately after which
such Person has "Beneficial Ownership" within the meaning of
Rule 13d-3 promulgated under the 1934 Act and irrespective of
any vesting or waiting periods) of a greater percentage of the
Voting Securities than Xxxxxx Xxxxxx, if within six months
thereafter the individuals who were members of the Board of
Directors immediately prior to such acquisition or the initial
agreement relating to such acquisition no longer constitute at
least a majority of the members of the Board of Directors of
the Company.
(iii) A merger, consolidation or reorganization involving the
Corporation or a sale of all or substantially all of the assets
of the Corporation, unless
(A) the shareholders of the Corporation, immediately before
such merger, consolidation or reorganization, own, directly or
indirectly, immediately following such merger, consolidation or
reorganization, more than fifty (50%) percent of the combined
voting power of the outstanding Voting Securities of the entity
resulting from such merger or consolidation or reorganization
or sale of all or substantially all of the assets (the
"SURVIVING ENTITY") in substantially the same proportion as
their ownership of the Voting Securities immediately before such
merger, consolidation or reorganization or sale of all or
substantially all of the assets, and
(B) the individuals who were members of the Board of Directors
immediately prior to the execution of the agreement providing
for such merger, consolidation or reorganization or sale of all
or substantially all of the assets constitute at least a
majority of the members of the board of directors of the
Surviving Entity or an entity beneficially owning, directly or
indirectly, a majority of the Voting Securities of the
Surviving Entity, and
(C) no Person (other than the Corporation, any subsidiary, any
employee benefit plan (or any trust forming a part thereof)
maintained by the Corporation, the Surviving Entity or any
subsidiary, or any Person who, immediately prior to such merger,
consolidation or reorganization or sale of all or substantially
all of the assets had Beneficial Ownership of thirty (30%)
percent or more of the then outstanding Voting Securities) owns,
directly or indirectly, thirty (30%) percent or more of the
combined voting power of the Surviving Entity's then
outstanding Voting Securities.
(iv) A complete liquidation or dissolution of the Corporation.
(v) There has been a public announcement of a Change in Control of
the Corporation (provided, however, that consummation of the
Change in Control of the Corporation shall be a condition
precedent to the effectiveness of this provision) and at any
time thereafter the employment of the Executive under this
Agreement is terminated for any reason whatsoever;
(c) Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "SUBJECT PERSON") acquired Beneficial
Ownership of more than the permitted amount of the outstanding Voting Securities
as a result of the acquisition of Voting Securities by the Corporation which, by
reducing the number of Voting Securities outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Person, provided that if a
Change in Control would occur (but for the operation of this sentence) as a
result of the acquisition of Voting Securities by the Corporation, and after
such share acquisition by the Corporation, the Subject Person becomes the
Beneficial Owner of any additional Voting Securities which increases the
percentage of the then outstanding Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.
(d) If Employee's employment is terminated pursuant to this Section, the
Corporation shall pay to the Executive (i) his full salary at the rate then in
effective through the date of termination and plus an amount equal to two times
the annual salary payable hereunder at the rate then in effect and (ii) and an
amount equal to the pro rata portion of the bonus to which Executive is entitled
for the then current year (based on the portion of the year through the date of
termination) through the date of termination or if such amount cannot be
determined, the pro rata portion of the bonus paid for the preceding year
through the date of termination plus an amount equal to the bonus payable for a
two year period based on the annual bonus payable for the then current year, or
if such amount cannot be determined, the amount of the bonus paid for the prior
year. In addition, the Company will continue to provide and to Executive, at the
Company's expense, all benefits as enumerated in Paragraph 4 above for a period
of two years.
8. The Corporation and Employee are simultaneously herewith entering into a
Maintenance of Confidence and Non-Compete Agreement, the terms of which are
hereby expressly incorporated into this Agreement, provided, however, that the
Maintenance of Confidence and Non-Compete Agreement shall continue to be
effective notwithstanding any termination of Employee?s employment hereunder and
shall continue in effect upon expiration of this Employment Agreement pursuant
to the terms of the Maintenance of Confidence and Non-Compete Agreement.
9. In the event of Executive's death during the Term, this Agreement shall
terminate immediately, and Executive's legal representatives shall be entitled
to receive the salary due Executive through the last day of the calendar month
during which his death shall have occurred.
10. If, during the Term, Executive is unable to perform his duties
hereunder on account of illness, accident or other physical or mental incapacity
and such illness or other incapacity shall continue for a period of six (6)
consecutive months or an aggregate of one hundred and eighty (180) days in any
consecutive twelve (12) month period, the Corporation shall have the right, on
fifteen (15) days written notice (given after such period) to Executive, to
terminate this Agreement. In such event, the Corporation shall be obligated to
pay to Executive his compensation only to the end of the calendar month in which
such termination occurs. However, if prior to the date specified in such notice,
Executive's illness or incapacity shall have terminated and he shall have taken
up the performance of his duties hereunder, Executive shall be entitled to
resume his employment hereunder, as though such notice had not been given.
11. (a) The Corporation shall have the right from time to time to purchase,
increase, modify or terminate insurance policies on the life of Executive for
the benefit of the Corporation, in such amounts as the Corporation shall
determine in its sole discretion
(b) In connection with paragraph 11(a) above, Executive shall, at such
time or times and at such place or places as the Corporation may reasonable
direct, submit himself to such physical examinations and executive and
deliver such documents as the Corporation may deem necessary or desirable.
12. CONFIDENTIALITY. Executive acknowledges that, through his status as
Vice President, Finance and Controller of the Corporation, and will have,
possession of Confidential Information (as defined herein) as to the business of
the Corporation. Executive agrees that all such Confidential Information
constitutes a vital part of the business of the Corporation and its affiliates
and is by its nature trade secrets and confidential information proprietary to
the Corporation and its affiliates. Executive agrees that he shall not divulge,
communicate, furnish or make accessible (whether orally or in writing or in
books, articles or any other medium to any individual, firm, partnership,
corporation or other entity or person, any knowledge or information with respect
to Confidential Information directly or indirectly relating to the business of
the Corporation or any of its affiliates. The term "Confidential Information"
shall mean any information not generally known in the relevant trade or
otherwise not generally available to the public, which was obtained from the
Corporation or which was learned, discovered, developed, conceived, originated
or prepared during or as a result of the performance of any services by
Executive on behalf of the Corporation.
13. The parties hereto acknowledge that Executive's service are unique and
that, in the event of a breach of Executive of any of his obligations under this
Agreement, the corporation will not have an adequate remedy at law. Accordingly,
in the event of any such breach of threatened
breach by Executive, the Corporation shall be entitled to such equitable and
injunctive relief as may be available to restrain the Executive participating in
such breach of threatened breach from the violation of the provisions thereof.
Nothing herein shall be construed as prohibiting the Corporation from pursuing
any other remedies at law or in equity for such breach or threatened breach,
including the recovery of damages and the immediate termination of the
employment of Executive hereunder.
14. This Agreement together with the Maintenance of Confidence and
Non-Compete Agreement executed on the same date hereof, constitute the entire
agreement of the parties hereto and no amendment or modification hereof shall be
valid or binding unless made in writing and signed by the party against whom
enforcement thereof is sought.
15. Any notice required, permitted or desired to be given pursuant to any
of the provisions of this Agreement shall be deemed to have been sufficiently
given or served for all purposes if delivered in person or sent by certified
mail, return receipt requested, postage and fees prepaid as follows:
If to the Corporation at:
Chairman of the Board
TSR, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
If to the Executive at:
Mr. Xxxx Xxxxxxx
Xxxxxxx xx.
xxxxx, xx xxxxx
Either of the parties hereto may at any time and from time to time change the
address to which notice shall be sent hereunder by notice to the other party
given under this paragraph 15. The date of the giving of any notice sent by mail
shall be the date of the posting of the mail.
16. Neither this Agreement nor the right to receive any payments hereunder
may be assigned by Executive. This Agreement shall be binding upon Executive,
his heirs, executors and administrators and upon the Corporation, its successors
and assigns.
17. No course of dealing nor any delay on the part of the Corporation in
exercising any rights hereunder shall operate as a waiver of any such rights. No
waiver of any default or breach of this Agreement shall be deemed a continuing
waiver or a waiver of any other breach or default.
18. This Agreement shall be governed, interpreted and construed in
accordance with the laws of the Sate of New York applicable to agreements
entered into and to be performed entirely therein.
19. If any clause, paragraph, section of part of this Agreement shall be
held or declared to be void, invalid or illegal, for any reason, by any court of
competent jurisdiction, such provision shall be ineffective but shall not in any
way invalidate or affect any other clause, paragraph, section or part of this
Agreement.
20. Employee acknowledges that he is not subject to any agreement which
would in any way restrict him from carrying out his employment as contemplated
hereunder.
21. This agreement supersedes any prior employment agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day in year first above written.
TSR, INC.
By: /s/ X. X. XXXXXX
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Name: X.X. Xxxxxx
Title: President
/s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
