EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT (hereinafter "Agreement") entered into this
25th day of
October, 2007 and made effective as of the 15th day of August 2007, by and
between XXXXXXXXXX HOLDING CORPORATION, a Delaware Corporation
(hereinafter referred to as the "Company") and XXXXXXX X.
XXXXXXXXXXX, a Florida resident (hereinafter referred to as
“Executive").
W
I T N E S S E T H:
WHEREAS,
The Company is a publicly traded holding company owning and operating subsidiary
companies in the construction industry.
NOW,
THEREFORE, in consideration of the mutual promises contained herein,
and for other good and valuable consideration the receipt and adequacy of which
is hereby acknowledged, the parties hereto agree as follows:
1. RECITALS. The
foregoing recitals are true and correct in every respect and are incorporated
by
reference herein.
2. DEFINITIONS.
a.
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"Board"
shall refer to the Board of Directors of
Company.
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b.
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"Disability"
or "Disabled" shall mean a physical or mental impairment that prevents
Executive from performing the essential functions of his job after
reasonable accomodation has been made for Executive, if required
under the
Americans with Disabilities Act. Whether or not Executive is
Disabled hereunder shall be determined by a physician selected by
the
Company and reasonably acceptable to the
Executive.
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c.
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“Option”
shall mean a written document authorizing the purchase of stock of
Company, at a specified price, for a defined period of
time.
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3. DUTIES
AND DEVOTION OF EFFORTS.
a.
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Duties. Company
hereby employs Executive to exercise all authority as the President
and
Chief Executive Officer (hereinafter referred to as “CEO”). As
President and CEO, Executive shall perform all duties and administrative
tasks ordinarily performed by a President and Chief Executive Officer
of a
similar business and other duties reasonably assigned to him by the
Board
of Directors (hereinafter the "Board") to the extent permitted under
law,
including the Securities Laws of the United States, and applicable
canons
of professional ethics and which may reasonably be accomplished under
the
terms set forth herein. Company is aware that Executive has
other business interests that will require some of his time during
non-working hours.
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b.
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Devotion
of Effort. Executive hereby agrees to devote substantially
all of his time, attention and energies during normal business hours
to
the benefit of the business of the Company and its subsidiaries and
to
comply in all material respects with all rules, regulations,
policies and procedures of the Company applicable to all senior
management. During the term of this Agreement, Executive shall
conduct himself in a manner befitting his position as a professional
corporate chief executive officer.
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1
4. TERM
OF AGREEMENT. The Term of this Agreement shall begin
August 15, 2007, and end on August 15, 2010 ("Initial Term"). Upon
the expiration of the Initial Term, this Agreement shall be automatically
renewed on a year-to-year basis (each a “Renewal Term”). The Initial
Term and any Renewal Term may sometimes hereafter be collectively referred
to as
the “Term”.
5. COMPENSATION. During
each Term hereof, Company shall provide the following to Executive:
a.
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Base
Compensation. Executive’s Annual Base Compensation shall be
$250,000 annually. From time to time thereafter, Executive’s
Base Annual Compensation shall be increased consistent with the Company’s
compensation policy for senior management determined by the Board
of
Directors. Executive’s compensation shall be paid, and all
withholding from gross salary required by federal or state law shall
be
made, by Company, in accordance with its usual payroll practices,
provided
that salary payments to be made to Executive hereunder shall be made
no
less frequently than twice monthly.
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b.
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Bonus. Executive
shall be entitled to Bonus compensation as set forth on Schedule
5(b). Executive shall receive a $35,000 advance, payable upon
execution hereof against future bonuses earned by Executive pursuant
to
Schedule 5(b). In the event Executive’s employment is
terminated for any reason other than death or termination without
cause by
Company, then Executive shall repay such Bonus advance to Company
within 5
days following the date of
termination.
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c.
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Non-Cash
Compensation. Company shall provide Executive with non-cash
compensation as set forth on Schedule
5(c).
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d.
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Membership
Fees. Company shall reimburse to Executive the cost of
private club dues paid by Executive to the Founder’s Club, not to exceed
70% of such dues or $2500 per annum, whichever is
greater.
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e.
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Benefits. Company
shall provide Executive with an annual or monthly membership to a
local
heath club of Executive’s choice, health insurance and disability
insurance (which shall be sufficient to cover the Base Compensation
for
the term of the Agreement or the maximum available for the term of
this
Agreement, whichever is less). In addition, Company will
provide Executive with all of the fringe benefits now or hereafter
approved by Company for any officer, including, but not limited to,
401(k)
plan and life insurance.
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f.
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Automobile. Company
shall provide Executive an automobile allowance of $350 per month
plus
fuel reimbursement.
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g.
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Miscellaneous
Expenses. Company shall reimburse Executive for Executive’s
reasonable travel costs, occupational licenses, cell phone expense,
promotional and business entertainment expenses, and all other related
business expenses in accordance with Company
policy.
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2
h.
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Leave. Other
than as stated herein, use of leave and observation of holidays shall
be
subject to Company policies, which may change from time to
time.
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i.
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Vacation. Executive
shall receive 4 weeks of paid Vacation per year (accrued fully at
the beginning
of each calendar year), of which a maximum of 4 weeks may be
carried over from year to year, and shall be paid in full upon termination
of Executive’s relationship with Company for any
reason.
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ii.
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Sick
Leave. Executive shall receive 8 days of paid Sick Leave
per year, which may be used due to health issues of Executive or
his
immediate family (accrued
fully at the beginning of each calendar year), of which a maximum
of 8 days may be carried over from year to year. Unused sick
leave is forfeited upon separation for any reason. Sick Leave may
not be
exchanged for compensation. In the event Executive uses all
accrued Sick Leave, Executive may use any accrued sick leave or accrued
Professional Development Time to care for his own illness or the
illness
of a member of his immediate
family.
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i.
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D
& O Insurance. During the term of this Agreement,
Company shall provide Director’s and Officer’s Insurance equal to or
greater than that provided on the Effective Date of this
Agreement.
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j.
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Professional
Development Time. Executive shall be entitled to a period
of fifteen (15) days per year (accrued fully at the beginning of
each
calendar year) of Professional Development Time to attend conventions
or
continuing education seminars or any other reason approved by the
Board,
in its reasonable discretion. There shall be a carryover of such
time from
year to year. However, no compensation shall be paid to Executive
for any
unused Professional Development Time upon termination of this
Agreement.
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6. EXECUTIVE
EXPENSES. Executive shall not be responsible for the payment
of any approved expenses incurred in connection with his services provided
to
Company if such expenses are not paid by Company.
7. TERMINATION
OF AGREEMENT
a.
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Termination. Either
party may terminate this Agreement at the expiration of the Initial
Term
or any Renewal Term by delivering a written Notice of Non-Renewal
to the
other party at least 60 days prior to the expiration of such
Term. Failure to provide such notice will result in an
automatic renewal as set forth
herein.
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b.
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Termination
of Agreement by Company "For Cause". Company may
immediately terminate this Agreement For Cause, as defined below,
upon
delivery of a written notice to Executive. For Cause shall be
determined by the Board of Directors of the Company in its good faith
discretion, and shall mean the occurrence of any of the following
events:
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(i)
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Executive
commits a material breach of this Agreement (other than as a result
of
being disabled (as defined below)) which breach continues for a period
of
thirty (30) days after written notice is given to Executive by the
Company
specifying the nature of the alleged breach or failure and warning
of the
consequences of a failure to correct (or, if such breach cannot be
cured
within thirty (30) days, Executive shall fail within such thirty
(30) day
period to take reasonable steps to remedy same; provided, however,
Executive shall not be entitled to a cure period for repeated and
continuous material breaches of this Agreement;
or
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(ii)
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Executive
is convicted of, or pleads guilty or no contest to, any crime punishable
as a felony or embezzlement or fraud;
or
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(iii)
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Executive
engages in habitual intoxication, habitual drug abuse or willful
malfeasance, that is, or reasonably could be, materially injurious
to the
Company’s business, finances or
reputation.
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(iv)
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Executive
fails to file any personal filings related to the personal securities
trading activities of Executive which are required by the Securities
and
Exchange Commission to be filed by Executive due to Executive’s status as
an insider of the Company.
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c.
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Termination
by Company Without Cause. Company may terminate
this Agreement without cause by delivering notice of termination
without
cause to Executive. In the event Executive’s position and
duties are changed in a change of position (“Change of Position”) approved
by the Board of Directors of Company for any reason, including a
result of
a Change of Control (as hereafter defined), then, if Executive does
not
consent to the Change of Position, this Agreement shall be considered
terminated by Company without cause. In the event this
Agreement is terminated by the Company without cause, Executive shall
be
entitled to 12 months Base Compensation as severance, payable in
four (4)
equal quarterly installments, the first installment due ten (10)
days of
the date of termination and Company shall, in addition, pay the cost
of
Executive’s family health insurance coverage for the 12 month period
following termination. “Change of Control” shall mean the sale,
merger, other combination or sale of assets of Company which results
in a
sufficient change of control of Company that Company files an 8-K
to
disclose such Change of Control or is advised by Company’s securities
counsel that filing an 8-K disclosing such Change of Control is
necessary.
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d.
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Termination
by Employee for “Good Reason”. Employee may immediately
terminate this Agreement For Good Reason, as defined below, upon
delivery
of a written notice to Company. Good Reason shall mean the
occurrence of any of the following
events:
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i.
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Relocation
of the Company’s principal offices to a distance of more than 100 miles
from the Company’s principal office as of the date hereof without
Executive’s written consent, unless recommended to the Board of Directors
by the Executive;
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ii.
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The
requirement by the Company that the Executive be based anywhere other
than
Company’s principal offices without Executive’s written consent, which
action continues for a period of fifteen (15) days after written
notice is
given to Company by Executive;
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iii.
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Company
commits a material breach of this Agreement which breach continues
for a
period of thirty (30) days after written notice is given to the Company
by
the Executive (or if such breach cannot be cured within thirty (30)
days,
the Company shall fail within such thirty (30) day period to take
reasonable steps to remedy the same); provided, however, the Company
shall
not be entitled to a cure period for repeated and continuous material
breaches of this Agreement;
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iv.
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Company,
without Cause or without Executive’s written consent, assigns the
Executive to a position, responsibilities or duties of a materially
lesser
status or degree of responsibility than the Executive’s position as
Company President and CEO, which action continues for a period of
fifteen
(15) days after written notice is given to the Company by
Executive.
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In
the
event this Agreement is terminated by the Executive for Good Reason, Executive
shall be entitled to 12 months Base Compensation as severance, payable in one
lump sum within ten (10) days of the date of such termination and Company shall,
in addition, pay the cost of Executive’s family health insurance coverage for
the 12 month period following termination.
e.
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Death
or Disability. This Agreement shall automatically terminate
upon the death of the Executive or the Disability of the Executive
for a
period in excess of ninety (90) consecutive days or for a period
in excess
of one hundred eighty (180) days during any consecutive twelve (12)
month
period. In the event this Agreement is terminated as a result
of Executive’s death or Disability, Base Compensation through the date of
termination, any Options vested through the date of termination and
any
Bonus which has been earned but not yet paid shall be paid by Company
to
Executive or Executive’s estate, as appropriate. In addition,
Executive shall be entitled to be paid the pro-rated portion of any
Bonus
which would have been earned for the fiscal year in which the event
of
termination occurs, within 90 days of the date of determination of
the
Bonus (but no later than the date that is two and one-half months
after
the end of the calendar year in which the date of determination occurs),
and to immediate vesting of any Options due to vest in the fiscal
year of
Company in which the death or disability
occurs.
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f.
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Voluntary
Termination. Executive may voluntarily terminate this
Agreement by giving sixty (60) days written notice to the other
party.
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g.
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Compensation
Upon Termination.
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i.
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In
addition to the severance compensation payable under Section 7(c)
or 7(d)
hereof, should this Agreement be terminated by Company at any time
for any
reason other than For Cause or by the Executive for any reason at
any time
after February 15, 2008, Company shall pay to Executive $35,000 and
an
amount equal to three (3) months Base Compensation for each completed
full
year of the term of this Agreement payable in one lump sum within
ten (10)
days of the date of such termination. A year shall be
considered 365 days. Partial years will not be
compensated. Such compensation shall be paid in four (4) equal
quarterly installments, with the first installment due ten (10) days
following the date of termination.
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ii.
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In
the event of a termination of this Agreement for any reason, Executive
shall be entitled to receive any Bonus which has been earned but
not yet
paid. Bonus, if any, shall be deemed earned at the end of each
reporting quarter of Company’s fiscal
year.
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iii.
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In
the event of a termination of this Agreement for any reason, Executive
shall be entitled to receive pay in lieu of any unused accrued vacation
as
set forth in Article 5(h)(i)
hereof.
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iv.
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Executive
agrees that in the event of termination, Executive is not entitled
to
unemployment compensation and will not seek unemployment
compensation.
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8. NOTICE. Any
and all notices, requests, demands, directions or other communications required
or permitted hereunder shall be in writing and shall be deemed to have been
given or made when personally delivered or mailed by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows or to
such
other address as the party to whom the same is intended shall have specified
in
conformity with the foregoing:
As
to
Company:
Xxxxxxxxxx Holding Corporation
2208
–
00xx Xxx
X
Xxxxxxxxx,
Xxxxxxx 00000
As
to
Executive: X.
Xxxxxxxxxxx
0000
Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx,
XX 00000
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9. INDEMNITY. Company
shall indemnify and hold Executive harmless from and against any and all claims
or actions brought by any person or from liabilities, losses, damages, costs,
penalties and expenses, including but not limited to attorneys’ fees, costs and
interest incurred by counsel of Company's choice, which may be sustained or
incurred at any time by reason of Executive’s Performance of the services,
responsibilities and duties set out in this Agreement, except that Company
shall
not indemnify Executive to the extent such claims, actions, liabilities, losses,
damages, cost, penalties or expenses arise from Executive’s gross negligence,
willful misconduct or criminal conduct.
10. CONFIDENTIALITY. Executive
shall keep confidential and not use or disclose to others, except as expressly
consented to in writing by Company or as required by applicable federal, state
and local laws and regulations, any secrets or confidential technology,
proprietary information, customer lists, or trade secrets of Company, or any
matter, formula, technique or thing ascertained by Executive through association
with Company, the use or disclosure of which matter or thing might reasonably
be
construed to be contrary to the best interests of Company. Executive further
agrees that upon termination of this Agreement, Executive shall neither take
nor
retain, without prior written authorization from Company, any papers, patient
lists, fee books, records, files, or other documents or copies thereof or other
confidential information or formula of any kind belonging to Company pertaining
to its clients, business, sales, financial condition, or products. Without
limiting other possible remedies to Company for the breach of this covenant,
Executive agrees that an injunction or other equitable relief shall be available
to enforce this covenant, and such relief to be without the necessity of posting
a bond, cash or otherwise. The parties specially agree that
confidential information does not include information that (i) is or becomes
available to the public other than as a result of a disclosure by Executive,
(ii) was within Executive’s possession prior to the information being furnished
to it by Company, during their term of service with Company, or (iii) becomes
available to Executive on a non-confidential basis and lawfully from a source
other than Company, provided that such other source is not bound by a
confidentiality agreement with Company.
11. NON
COMPETITION.
a.
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Executive
agrees that during the term of this Agreement and for a period of
one (1)
year following termination or expiration hereof, for any reason,
and for
one (1) year upon expiration of this Agreement if this Agreement
is not
earlier terminated, Executive will not directly or
indirectly:
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(i)
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Solicit
or contact any clients, potential clients or candidates, except on
behalf
of Company, or to persuade clients, potential clients or candidates
to
cease to do business with Company or to reduce the amount of business
with
Company;
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(ii)
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Employ
or retain, or attempt to employ or retain, or assist anyone else
to employ
or retain any person who is then, or at any time during the preceding
year, an employee, contractor or consultant of
Company;
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(iii)
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Compete
with the business of Company. The term “Compete with the
business of Company” shall mean engaging in any business, either as an
owner, operator, officer, director, joint venture partner or otherwise,
of
an entity engaged in any business line also engaged in by the Company
in
the United States and Canada. Ownership of 5% or less of any
publicly traded business which would otherwise be considered to constitute
Competing with the business of Company shall not be in and of itself
such
competition, however service as an officer, director or agent of
any such
Company shall constitute such
competition;
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(iv)
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Utilize
any of the business plans or methods used by Company, except as an
employee, contractor or consultant of Company in furtherance of
Executive’s job duties with
Company.
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b.
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Failure
of any party at any time to insist upon strict performance of a condition,
promise, agreement, or understanding set forth herein, shall not
be
construed as a waiver or relinquishment of the right to insist upon
strict
performance of such condition, promise, agreement or understanding
at a
future time.
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c.
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The
parties agree that Company may assign this Agreement, and any
successor-in-interest shall have the right to full enforcement of
this
Agreement. This Agreement shall not be assignable by
Executive.
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d.
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The
parties hereto agree that a breach of this Agreement by Executive
would
cause damages that are not readily ascertainable. The remedies
under this Agreement include but are not limited to, temporary and
permanent injunctions, actual damages and any other appropriate remedies
at law and in equity.
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e.
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Notwithstanding
the provisions of this Article 11, the covenants contained in this
Section
11 shall immediately and automatically terminate in the event (i)
Company
or its successor-in-interest ceases to do business, or (ii) the Company
fails to pay to Executive any of the amounts due under Section 7(c),
7(d)
or 7(f) hereof after thirty (30) days written notice that such payment
is
due; provided, however, notwithstanding the termination of these
covenants, Executive shall remain entitled to payments due under
Section
7(c), 7(d) and 7(g) as applicable. Notwithstanding the
foregoing, in the event there is dispute as whether Executive has
been
properly terminated in accordance with Article 7(b) hereof, this
covenant
shall remain in full force and effect pending resolution of such
dispute.
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12. MISCELLANEOUS
PROVISIONS.
a.
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Florida
Law and Venue. This Agreement shall be
governed by and construed and enforced in accordance with the laws
of the
State of Florida. If any action, suit or proceeding is
instituted as a result of any matter or thing affecting this Agreement,
the parties hereby designate Sarasota County, Florida, as the proper
jurisdiction and the venue in which same is to be
instituted.
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b.
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No
Presumption. The fact that the first (or later) draft of
this Agreement was prepared by counsel for either party shall create
no
presumptions and specifically shall not cause any ambiguities to
be
construed against the other party.
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c.
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Headings. The
Paragraph headings contained herein are for reference purposes only
and
shall not in any way affect the meaning and interpretation of this
Agreement.
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d.
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Binding
Effect. This Agreement shall be legally binding upon and
shall operate for the benefit of the parties hereto, their respective
heirs, personal and legal representatives, transferees, successors,
assigns and beneficiaries.
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e.
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Entire
Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the subject matter addressed herein,
and all prior understandings and agreements, whether written or oral,
between and among the parties hereto relating to the subject matter
of
this Agreement are merged in this Agreement. Each party
specifically acknowledges, represents and warrants that they have
not been
induced to sign this Agreement by any belief that the other will
waive or
modify the provisions of this Agreement in the
future.
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f.
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Severability. The
invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this
Agreement
shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
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g.
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Counterparts. This
Agreement may be signed and executed in one or more counterparts,
each of
which shall be deemed an original and all of which together shall
constitute one agreement.
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h.
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Modification. This
Agreement may only be modified in writing and signed by each of the
parties hereto.
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i.
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Plural
and Gender. Whenever used herein, the singular number shall
include the plural, the plural the singular, and the use of any gender
shall be applicable to all genders.
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j.
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Survival. All
representations, warranties and provisions hereof without limitation
shall
survive the termination of this Agreement, the liquidation or dissolution
of the Corporation, if any, and shall thereby continue in full force
and
effect at all times hereafter.
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k.
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No
Waiver of Breach. The waiver or inaction by either party
hereto of a breach of any condition of this Agreement by the other
party
shall not be construed as a waiver of any subsequent breach by such
party,
nor shall it constitute a waiver of that party's rights, actual or
inherent. The failure of any party hereto in any instance to
insist upon a strict performance of the terms of this Agreement or
to
exercise any option herein shall not be construed as a waiver or
a
relinquishment in the future of such term or option, but that the
same
shall continue in full force and
effect.
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l.
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Merger. All
prior agreements, discussions or matters heretofore pending between
the
parties, unless specifically referred to herein, have been merged
into
this Agreement and no claim or assertion based upon agreements, purported
or otherwise, not herein contained shall be binding or enforceable
by
either party.
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m.
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Attorneys'
Fees and Costs. If it should become necessary for any party
to institute legal action to enforce the terms and conditions of
this
Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees and costs incurred in connection
therewith.
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n.
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Arbitration/Waiver
of Jury Trial. The parties to this Agreement agree to
submit any irreconcilable disputes to binding arbitration by an arbitrator
approved by the American Arbitration Association (“AAA”) and shall be
resolved in accordance with the National Rules for the Resolution
of
Employment Disputes (the “Rules”) of the AAA. Arbitration shall
be by a single arbitrator experienced in the matters at issue and
selected
by the parties in accordance with the Rules. The
arbitration shall be held in such place in Bradenton, Florida as
may be
specified by the arbitrator (or any place agreed to by the parties
and the
arbitrator). The decision of the arbitrator shall be final and
binding as to any matters submitted under this Section; provided,
however,
if necessary, such decision may be enforced in any court having
jurisdiction over the subject matter or over any of the parties to
this
Agreement. The prevailing party will be entitled to receive
from the non-prevailing party all of those costs it incurred including,
but not limited to, the fees and costs of its attorneys, paralegals
and
consultants incurred as a result of such
arbitration.
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13. 409A. Notwithstanding
any other provision of this Agreement, no amount hereunder shall be payable
to
the extent that such payment would violate the terms of Internal Revenue Code
§409A (“409A”). Any amount payable under this Agreement which
is deferred compensation under 409A shall be subject to the following
restrictions:
(i) Such
amount will be payable only at the time and in the form designated
herein. The parties hereto shall not have discretion to agree
to a substitute payment in a different amount or payable at a different time
or
in a different form than specified herein except to the extent that such change
in amount, time or form of payment is permissible under 409A.
(ii) Changes
to the time and/or form of payment of such amount shall be allowable only to
the
extent such change is permitted under 409A.
(iii) This
Agreement shall not apply to any amounts to which the Executive has a legally
binding right prior to execution of this Agreement.
(iv) Such
amount may be paid under this Agreement only on the occurrence of an event
permitted under 409A including but not limited to separation from service,
death
or disability (as defined in 409A), unforeseeable emergency (as defined in
409A), a specific time designated herein, or change of control of the
Company.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMPANY: | |||
XXXXXXXXXX HOLDING CORPORATION | |||
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|||
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By:
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/s/ Xxxxxxxx Xxxxxx | |
Xxxxxxxx Xxxxxx, Chairman | |||
EXECUTIVE: | |||
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By:
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/s/ Xxxxxxx X. Xxxxxxxxxxx | |
Xxxxxxx X. Xxxxxxxxxxx | |||
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SCHEDULE
5(b)
Bonus
Executive
shall be entitled to a bonus, accrued and paid quarterly, during the Term of
this agreement as follows:
1.
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Operating
Income Bonus:
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A.
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During
any fiscal year, Executive shall be entitled to a bonus equal to
the
greater of (i) thirty-five thousand dollars ($35,000) or (ii) three
percent (3.0%) of that fiscal year’s Operating Income as reported on the
Company’s Form 10-KSB for that particular fiscal year, adjusted for
non-cash items including, but not limited to, stock compensation
expense
and amortization of intangible
assets.
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B.
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The
specific bonus amount shall be determined no later than thirty (30)
days
after the end of each fiscal quarter and shall be due and payable
to
Executive in three equal installments, the first due within thirty
(30)
business days after the date of determination, the second due within
sixty
(60) days after the date of determination, and the third due, subject
to
adjustment as provided below, within seventy-five (75) days following
the
date of determination. In the event the bonus payable is based
on a percentage of Operating Income, if the annual audit by Company’s
auditors shows a Operating Income different from that previously
determined by Company, then an adjustment shall be made to the third
payment of the fourth quarter and Executive shall be paid the difference
in the event of any underpayment, or in the event of any overpayment,
such
amount shall be set off against future bonus payments due
Executive.
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C.
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All
payments of bonus by Company will be subject to cash availability,
and
shall be required to be paid no later than 75 days following the
end of
the quarter in which the bonus payment was
accrued.
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2.
|
Acquisition
Bonus:
|
A.
|
In
the event that Company shall acquire any third party business approved
for
acquisition by the Board of Directors of Company (the “Acquisition
Target”), Executive shall be entitled to a bonus equal to ½ of 1% of the
Gross Revenue of the Acquisition Target. Gross Revenue shall be
defined as the preceding 12 months gross revenue of the Acquisition
Target
as reported on the financial statements of the Acquisition Target
for the
period ending most closely preceding the closing date of the
acquisition. The Acquisition Bonus shall be payable in two
equal installments, the first due upon closing and the second due
upon
Company achieving integration benchmarks as determined in good faith
by
the Board of Directors of Company in consultation with
Executive.
|
B.
|
In
the event that Company shall acquire any Acquisition Target, Company
shall
make available to Executive a sum equal to ½ of 1% of the Gross Revenue of
the Acquisition Target, for distribution to members of the acquisition
and
integration teams other than Executive, at the discretion of
Executive.
|
C.
|
All
payments of bonus by Company will be subject to cash availability
and will
be paid no later than 75 days after such bonus is earned by
Executive.
|
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SCHEDULE
5(c)
Stock Awards
Stock Awards
Executive
shall be eligible to participate in the Company’s 2007 Incentive Stock Plan and
shall be eligible to participate in any future employee incentive plans adopted
by Company.
In
addition to the above, Executive shall be granted, on September 27, 2007,
1,800,000 shares of restricted common stock of Company. Such shares
shall be evidenced by four certificates to be held in escrow by Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx & Xxxxxx as counsel to Company, to be delivered to Executive
on the dates set forth below. Should Company fail to pay any
compensation due Executive hereunder the Escrow will terminate and the
certificates will be immediately due to Executive.
Executive
shall execute such stock powers as necessary to permit Escrow Agent to transfer
the undelivered certificates and underlying stock back to Company in the event
Executive is no longer employed by Company at any time prior to the delivery
of
the final certificate from escrow to Executive. Upon delivery of the
final certificate from escrow to Executive, Escrow Agent will cancel such stock
power.
The
schedule for delivery of certificates is as follows:
November
15, 2007 - Certificate # _____, representing 450,000 shares to be delivered
to
Executive.
February
15, 2008 – Certificate # _____, representing 450,000 shares to be delivered to
Executive.
May
15,
2008 – Certificate # _______, representing 450,000 shares to be delivered to
Executive.
August
15, 2008 - Certificate # _______, representing 450,000 shares to be delivered
to
Executive.
At
the
time delivery of the certificates to Executive is to occur, Executive may direct
such certificates to be reissued in the name of Executive and Executive’s spouse
as tenants by the entireties.
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