EMPLOYMENT AGREEMENT
Exhibit
10.3
This
EMPLOYMENT AGREEMENT is made as of September 1, 2009 by and between DirectView
Holdings, Inc., a Delaware corporation(the “Company”), and Xxxxx
Xxxxxxx (“Executive”).
WITNESSETH:
WHEREAS,
Executive wishes to be employed by the Company with the duties and
responsibilities as hereinafter described, and the Company desires to assure
itself of the availability of Executive’s services in such
capacity.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
Company and Executive hereby agree as follows:
1. EMPLOYMENT. The
Company hereby agrees to employ Executive, and Executive hereby agrees to serve
the Company, upon the terms and conditions hereinafter set forth.
2. TERM. The employment
of Executive by the Company pursuant to this Agreement shall be for a sixty
three (63) month period commencing on September 1, 2009 (the “Employment
Term”).
3. DUTIES. Executive
shall, subject to overall direction consistent with the legal authority of the
Board of Directors of the Company (the “Board”), serve as,
and have all power and authority inherent in the offices of CEO and
President of the Company and as well as a member of the Board and shall be
responsible for those areas in the conduct of the business reasonably assigned
to him by the Board. Executive shall devote substantially all his business time
and efforts to the business of the Company; provided, however, that it is
understood and agreed that, while Executive may devote time to other business
matters in which he may have an interest, in the event of a conflict,
Executive’s first and primary responsibility shall be to the performance of his
duties for the Company.
4. COMPENSATION AND OTHER
PROVISIONS. Executive shall be entitled to the compensation and benefits
hereinafter described in subparagraphs (A) through (D) (such compensation and
benefits being hereinafter referred to as “Compensation
Benefits”).
A. BASE SALARY. The
Company shall pay to Executive a base salary (the “Base Salary”) as
follows:
i. $150,000
per annum (pro rated) for the period commencing on September 1, 2009 and ending
on December 31, 2009;
ii. $200,000
per annum for the period commencing on January 1, 2010 and ending on December
31, 2010;
iii. $250,000
per annum for the period commencing on January 1, 2011 and ending on December
31, 2011;
iv. $300,000
per annum for the period commencing on January 1, 2012 and ending on December
31, 2012;
vi. $400,000
per annum for the period commencing on January 1, 2014 and ending on December
31, 2014.
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B. COMPENSATION
ADJUSTMENT. The Base Salary and Executive’s other compensation will be
reviewed by the Board of Directors of the Company (the “Board”) at least
annually and may be increased (but not decreased) from time to time as the Board
may determine.
C. PARTICIPATION IN BENEFIT
PLANS. During the Employment Term, Executive shall be eligible to
participate in all Executive benefit plans and arrangements now in effect or
which may hereafter be established, including, without limitation, all life,
group insurance and medical care plans and all disability, retirement and other
Executive benefit plans of the Company. Should the Executive not want to
participate in the Company’s health plan, with Board approval, the company will
reimburse the Executive for the expense incurred in participating in another
plan.
D. OTHER PROVISIONS.
During the Employment Term, Executive shall be entitled to (i) four (4) weeks
paid vacation per annum, (ii) an automobile allowance of $750 per month (pro
rated) which shall increase at five percent (5%) per annum beginning on January
1, 2010 and each year thereafter, and (iii) receive a mobile phone allowance of
$500 per month (pro rated) which shall increase five percent (5%) per annum
beginning on January 1, 2010 and each year thereafter. Executive shall make
himself available via email enabled mobile phone (such as a blackberry, iphone
or similar mobile device) during periods in which they are not in the offices of
the Company. Executive shall be reimbursed for all reasonable expenses incurred
by him in the performance of his duties, including, but not limited to,
entertainment, travel and other expenses incurred in connection with such
duties.
E. DISCRETIONARY
BONUSES. Executive shall be entitled to receive annual and/or interim
cash bonuses and/or other bonuses (“Bonus Payments”) when
and in such amounts as may be determined by the Board, pursuant to a
recommendation by the compensation committee of the Board. The Board shall meet
at least annually to review Executive’s Bonus Payments and such Bonus Payments
shall be based upon Executive’s performance of the duties assigned to him by the
Board, the Company’s satisfaction of stated performance objectives known to
Executive and/or other relevant factors.
F. INCENTIVE
COMPENSATION. Executive
shall be entitled to receive incentive compensation pursuant to Exhibit
A based on the performance
of the calendar year 2009, and/or interim cash bonuses and/or other bonuses as
compensation (“Incentive
Compensation”). Additional
compensation for the year 2009 and beyond shall be determined by the Board at a
future date.
G. INDEMNIFICATION. The
Company shall indemnify and hold harmless Executive to the fullest extent
permitted by law for any action or inaction of Executive while serving as an
officer and director of the Company or, at the Company’s request, as an officer
or director of any other entity affiliated with the Company, or as a fiduciary
of any benefit plan. The Company shall include the Executive under the Company’s
directors and officers’ liability insurance in the same amount and to the same
extent as the Company covers its other officers and directors both (i) during
the Employment Term, and (ii) for a five (5) year period after the Employment
Term.
5. TERMINATION.
Executive’s employment hereunder shall terminate as a result of any of the
following events:
A. Executive’s
death;
B. Executive
shall be unable to perform his duties hereunder by reason of illness, accident
or other physical or mental disability for a continuous period of at least three
(3) months or an aggregate of nine (9) months during any continuous eighteen
(18) month period (“Disability”);
C. voluntary
resignation by Executive;
D. termination
by the Company with Cause, where “Cause” shall mean:
(i) final non-appealable adjudication of Executive of a felony, which would have
a material or adverse effect on the business of the Company; or (ii) the
determination of the Board (other than Executive) that Executive has engaged in
intentional misconduct or the gross neglect of his duties, which has a
continuing material adverse effect on the business of the Company;
or
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E. termination
by the Company for any reason other than Cause.
Any
termination pursuant to subparagraph B, C, D or E of this Section shall be
communicated by a written notice (“Notice of
Termination”), such notice to set forth with specificity the grounds for
termination if termination is for “Cause”. Executive’s employment under this
Agreement shall be deemed to have terminated as follows: (i) if Executive’s
employment is terminated pursuant to subparagraph A above, on the date of his
death; (ii) if Executive’s employment is terminated pursuant to subparagraph B,
D or E above, on the date the Notice of Termination is received by Executive;
and (iii) if Executive’s employment is terminated pursuant to subparagraph C
above, thirty (30) days after the date on which the Company receives Notice of
Termination from Executive. The date on which termination is deemed to have
occurred pursuant to this paragraph is hereinafter referred to as the “Date of Termination”.
If the Notice of Termination is sent to Executive by Company, then it shall be
sent to Executive pursuant to the terms set forth in Section 14 of this
Agreement.
6. PAYMENTS ON
TERMINATION. In the event that Executive’s employment is terminated
pursuant to Sections 5 A, B, or E above, the Company shall pay to Executive and
or his estate, (i) all of the Compensation Benefits Executive is entitled to
through the Date of Termination (ii) all Incentive Compensation, benefits and
other compensation, if any, due and owing as of the Date of Termination, and
(iii) any Severance Payments that the Executive may be entitled to pursuant to
Section 15(C).
7. LIFE INSURANCE. If
requested by the Company, Executive shall submit to such physical examinations
and otherwise take such actions and execute and deliver such documents as may be
reasonably necessary to enable the Company to obtain life insurance on the life
of Executive for the benefit of the Company.
8. REPRESENTATIONS AND
WARRANTIES. Executive represents and warrants to the Company that he is
under no contractual or other restriction or obligation that would prevent the
performance of his duties hereunder or interfere with the rights of the Company
hereunder.
9. DISCLOSURE AND PROTECTION OF
CONFIDENTIAL INFORMATION.
A. For
purposes of this Agreement, “Confidential
Information” means knowledge, information and material which is
proprietary to the Company, of which Executive may obtain knowledge or access
through or as a result of his employment by the Company (including information
conceived, originated, discovered or developed in whole or in part by
Executive). Confidential Information includes, but is not limited to, (i)
technical knowledge, information and material such as trade secrets, processes,
formulas, data, know-how, improvements, inventions, computer programs, drawings,
patents, and experimental and development work techniques, and (ii) marketing
and other information, such as supplier lists, customer lists,
marketing and business plans, business or technical needs of customers,
consultants, licensees or suppliers and their methods of doing business,
arrangements with customers, consultants, licensees or suppliers, manuals and
personnel records or data. Confidential Information also includes any
information described above which the Company obtains from another party and
which the Company treats as proprietary or designates as confidential, whether
or not owned or developed by the Company. Notwithstanding the foregoing, any
information which is or becomes available to the general public other than by
breach of this Section 9 shall not constitute Confidential Information for
purposes of this Agreement.
B. During
the period in which the Executive is employed by the Company and for one (1)
years thereafter, Executive agrees, to hold in confidence all Confidential
Information and not to use such information for Executive’s own benefit or to
reveal, report, publish, disclose or transfer, directly or indirectly, any
Confidential Information to any person or entity, or to utilize any Confidential
Information for any purpose, except in the course of Executive’s work for the
Company or as required by law.
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C. Executive
will abide by any and all policies and procedures, whether formal or informal,
that may from time to time be imposed by the Company for the protection of
Confidential Information, and will inform the Company of any defects in, or
improvements that could be made to, such policies and procedures.
D. Executive
will notify the Company in writing immediately upon receipt of any subpoena,
notice to produce, or other compulsory order or process of any court of law or
government agency which requires or may require the disclosure or other transfer
of Confidential Information.
E. Upon
termination of Executive’s employment with the Company, Executive will deliver
to the Company or destroy (at Executive’s election) any and all records and
tangible property that contain Confidential Information that are in his
possession or under his control.
10. COVENANT NOT TO
COMPETE.
A. In
consideration for the Company entering into this Agreement, Executive covenants
and agrees that during the period in which the Executive is employed by the
Company and for one (1) year thereafter, Executive will not, without the express
prior written consent of the Company, directly or indirectly, compete with the
business of the Company anywhere within the United States of America. Executive
will not undertake any activities that are competitive with or acquire interests
in an entity which is competitive with the business of the Company, whether
alone, as a partner, or as an officer, director, Executive, independent
contractor, consultant or shareholder holding 5% or more of the outstanding
voting stock of any other corporation, or as a trustee, fiduciary or other
representative of any other person or entity.
B. During
the period in which the Executive is employed by the Company and for one (1)
year thereafter, Executive will not, directly or indirectly, solicit or induce
any Executive of the Company or any Executive of a subsidiary of the Company to
leave his or her employment, or solicit or induce any consultant or independent
contractor to sever that person’s relationship with the Company.
C. If
any court shall determine that the duration or geographical limit of any
covenant contained in this Section 10 is unenforceable, it is the intention of
the parties that covenant shall not be terminated but shall be deemed amended to
the extent required to render it valid and enforceable, such amendment to apply
only in the jurisdiction of the court that has made such
adjudication.
D. Executive
acknowledges and agrees that (i) the covenants contained in Sections 9 and 10
hereof are of the essence in this Agreement and that such covenants are
reasonable and necessary to protect and preserve the interests, properties, and
business of the Company, and (ii) irreparable loss and damage will be suffered
by the Company should Executive breach any of such covenants.
11. AVAILABILITY OF INJUNCTIVE
RELIEF. Executive acknowledges and agrees that any breach by him of the
provisions of Sections 9 or 10 hereof will cause the Company irreparable injury
and damage for which it cannot be adequately compensated in damages. Executive
therefore expressly agrees that the Company shall be entitled to seek injunctive
and/or other equitable relief, on a temporary or permanent basis to prevent an
anticipatory or continuing breach of this Agreement. Nothing herein shall be
construed as a waiver by the Company of any right it may have or hereafter
acquired to monetary damages by reason of any injury to its property, business
or reputation or otherwise arising out of any wrongful act or omission of
it.
12. SURVIVAL. The
covenants, agreements, representations and warranties contained in or made
pursuant to this Agreement shall survive Executive’s termination of employment,
irrespective of any investigation made by or on behalf of any
party.
13. MODIFICATION. This
Agreement sets forth the entire understanding of the parties with respect to the
subject matter hereof, supersedes all existing agreements between them
concerning such subject matter, and may be modified only by a written instrument
duly executed by each party.
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14. NOTICES. Any notice
required or permitted hereunder shall be deemed validly given if delivered by
hand, verified overnight delivery, or by first class, certified mail to the
following addresses (or to such other address as the addressee shall notify in
writing to the other party):
|
If
to Executive
|
Xxxxx
Xxxxxxx
|
|
|
|
|
If
to the Company:
|
0000
Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxx
Xxxxx, XX 00000
|
15. SEVERANCE PROVISIONS.
Upon the occurrence of a Triggering Event, as hereinafter defined, Executive
shall be entitled to the immediate receipt of all Severance Payments from the
Company in accordance with the terms hereinafter set forth:
A. TRIGGERING EVENT. The
occurrence of any of the following events shall be defined as a “Triggering Event” for
purposes of this Agreement:
i. The
Company’s termination of Executive’s employment for any reason whatsoever (other
than for Cause);
ii. The
voluntary resignation of Executive for any reason whatsoever within ninety (90)
days following a Change of Control; or
iii. The
voluntary resignation of Executive for “good reason”, which for purposes hereof
shall include, without limitation, (i) a demotion, (ii) a reduction in salary,
benefits, bonuses, incentives or perquisites, or (iii) the relocation of the
principal office of the Company or the relocation of Executive outside of
Broward or Palm Beach Counties, Florida; or
iv. The
death or Disability of Executive.
B. CHANGE
OF CONTROL. For purposes of this Agreement, the term “Change of Control” shall
mean the occurrence of any of the following events:
i. Twenty
five percent (25%) or more of the Company’s voting stock shall be acquired by
any person (other than executives of the Company as of the date hereof ), entity
or affiliated group;
ii. If
any individuals who at the beginning of any calendar year who were members of
the Board (“Incumbent Directors”) cease for any reason (other than death) to
constitute at least a majority thereof; provided that each new director whose
election, or nomination for election by the Company’s shareholders, was approved
by a vote of at least a majority of the directors then still in office who were
directors at the beginning of such period shall be deemed an Incumbent Director
unless such approval was made directly or indirectly in connection with an
actual or threatened election contest with respect to directors or as a result
of any other actual or threatened solicitation of proxies or consents by or on
behalf of any person other than the Board;
iii. Any
merger, consolidation or business combination pursuant to which the Company is
not the surviving corporation or twenty five percent (25%) or more of the
Company’s voting stock shall be owned or controlled by any person (other than
executives of the Company as of the date hereof), entity or affiliated
group;
iv. A
liquidation or dissolution of the Company; or
v. The
sale of all or substantially all of the Company’s assets.
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X. XXXXXXXXX PAYMENTS.
For purposes of this Agreement, the term “Severance Payment”
shall mean that:
i. Executive
shall receive a lump sum payment equal to the sum of (i) the product of (x) two
(2) and (y) the Executive’s highest annual Base Salary as of the date of
termination; and (ii) the product of (x) two (2) and (y) the sum of (A) highest
Bonus Payment, (B) highest Incentive Compensation that Executive was entitled to
receive pursuant to Exhibit A in respect of any year within the three (3) years
preceding the Triggering Event and (C) any other compensation payments the
Executive is entitled pursuant to Section 4(D).
SEVERANCE
PAYMENT FORMULA:
Severance
Payment = [(2)(highest Base Salary)] + [(2)( highest Bonus Payment + highest
Incentive Compensation + other compensation payments)]
ii. All
stock options, warrants, Incentive Compensation other stock appreciation rights
and other similar securities shall accelerate and become immediately and fully
vested and all conditions applicable to all contingently issued options,
warrants, stock appreciation rights and other similar securities shall be deemed
waived by the Company. In addition, the Company will maintain in effect a
registration statement covering the Executive’s Shares, as hereinafter
defined.
iii. All
common shares underlying any stock options, warrants, Incentive Compensation, or
other stock appreciation rights shall be covered by the Company by an effective
or current registration statement under the Securities Act of 1933, as amended
(the “Securities
Act”);
iv. All
Compensation Benefits applicable to Executive and his family members under
Sections 4.A, B and C of the Agreement shall continue for a period of two (2)
years following the later of
(i) the
Triggering Event or (ii) the expiration of the Employment Term (as if the
Triggering Event had not occurred);
v. In
the event that Severance Payments are deemed to be “excess parachute payments”
as defined under Section 280G of the Internal Revenue Code, then the Company
shall pay to Executive an additional lump sum cash payment as shall be necessary
to provide Executive with the same “after-tax” compensation and benefits as if
no such excise tax had been imposed;
vi. The
Company shall pay, as and when due, any and all attorneys’ fees and costs that
Executive may incur in connection with the enforcement of his rights under this
Agreement or any dispute or settlement in connection herewith;
vii. Notwithstanding
the forgoing, if a Triggering Event occurs on or prior to the first date that an
Incentive Compensation payment is to be made to Executive, then the Incentive
Compensation for purposes of this Section 15 shall be deemed to be the greater
of (i) one hundred percent (100%) of Executive’s Base Salary, or (ii) the amount
earned pursuant to the terms set forth in Exhibit
A;
viii. Severance
Payments will not be subject to mitigation in any respect; and
ix. The
non-competition and non-solicitation periods described in Section 10 of this
Agreement shall be reduced from one (1) year to three (3) months (other than by
virtue of the expiration of the Executive’s period of employment under this
Agreement or section 5 C).
D. COMPLIANCE WITH CODE SECTION
409A.
i. It
is the intention of both the Company and Executive that the benefits and rights
to which Executive could be entitled pursuant to this Agreement comply with
Section 409A of the Code and the Treasury Regulations and other guidance
promulgated or issued there under (“Section 409A”), to
the extent that the requirements of Section 409A are applicable thereto, and the
provisions of this Agreement shall be construed in a manner consistent with that
intention. If Executive or the Company believes, at any time, that any such
benefit or right that is subject to Section 409A does not so comply, it shall
promptly advise the other and shall negotiate reasonably and in good faith to
amend the terms of such benefits and rights such that they comply with Section
409A (with the most limited possible economic effect on Executive and on the
Company).
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ii. If
and to the extent required to comply with Section 409A, no payment or benefit
required to be paid under this Agreement on account of termination of
Executive’s employment shall be made unless and until Executive incurs a
“separation from service” within the meaning of Section 409A.
iii. If
Executive is a “specified Executive,”
then no payment or benefit that is payable on account of Executive’s “separation
from service”, as that term is defined for purposes of Section 409A, shall be
made before the date that is six months after Executive’s “separation from
service” (or, if earlier, the date of Executive’s death) if and to the extent
that such payment or benefit constitutes deferred compensation (or may be
nonqualified deferred compensation) under Section 409A and such deferral is
required to comply with the requirements of Section 409A. Any payment or
benefit delayed by reason of the prior sentence shall be paid out or provided in
a single lump sum at the end of such required delay period in order to catch up
to the original payment schedule. For purposes of this Section, Executive shall
be considered to be a “specified Executive” if, at the time of his or her
separation from service, Executive is a “key Executive”,
within the meaning of Section 416(i) of the Code, of the Company (or any person
or entity with whom the Company would be considered a single employer under
Section 414(b) or Section 414(c) of the Code) any stock in which is publicly
traded on an established securities market or otherwise.
iv. Neither
the Company nor Executive, individually or in combination, may accelerate any
payment or benefit that is subject to Section 409A, except in compliance with
Section 409A and the provisions of this Agreement, and no amount that is subject
to Section 409A shall be paid prior to the earliest date on which it may be paid
without violating Section 409A.
v. For
purposes of applying the provisions of Section 409A to this Agreement, each
separately identified amount to which Executive is entitled under this Agreement
shall be treated as a separate payment. In addition, to the extent permissible
under Section 409A, any series of installment payments under this Agreement
shall be treated as a right to a series of separate payments.
E. INDEPENDENT COUNSEL.
The Company and Executive agree that each of them have been, or were advised and
fully understand, that they are entitled to be represented by independent legal
counsel with respect to all matters contemplated herein from the commencement of
negotiations at all times through the execution hereof
16. WAIVER. Any waiver by
either party of a breach of any provision of this Agreement shall not operate as
or be construed to be a waiver of any other breach of such provision or of any
breach of any other provision of this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on one or more
occasions shall not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term of
this Agreement. All waivers must be in writing.
17. BINDING EFFECT. The
Company’s rights and obligations under this Agreement shall not be transferable
by assignment or otherwise, and any attempt to do any of the foregoing shall be
void. The provisions of this Agreement shall be binding upon the Executive and
his heirs and personal representatives, and shall be binding upon and inure to
the benefit of the Company, its successors and assigns.
18. HEADINGS. The
headings in this Agreement are solely for convenience of reference and shall be
given no effect in the construction or interpretation of this
Agreement.
19. GOVERNING LAW; VENUE.
This Agreement is to be performed in the State of Florida, and the validity,
construction and enforcement of, and the remedies under, this Agreement shall be
governed in accordance with the laws of the State of Florida, without giving
effect to any choice of laws principles. In the event of any litigation arising
out of or relating to this Agreement, exclusive venue shall be in Palm Beach
County, Florida.
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20. ENTIRE AGREEMENT.
This writing constitutes the binding and entire agreement of the parties
superseding and extinguishing all prior agreements or understandings regarding
the subject matter hereof, and may not be modified without the written agreement
by the parties.
21. INVALIDITY. The
invalidity or unenforceability of any term of this Agreement shall not
invalidate, make unenforceable or otherwise affect any other term of this
Agreement, which shall remain in full force and effect.
22. ATTORNEYS’ FEES.
Except for any disputes arising pursuant to Section 15 of this Agreement, if any
dispute or litigation arises hereunder between any of the parties hereto, then
the prevailing party shall be entitled to all reasonable costs and expenses
incurred by it in connection therewith (including, without limitation, all
reasonable attorneys’ fees and costs incurred before and at any trial or other
proceeding and at all tribunal levels), as well as all other relief granted in
any suit or other proceeding. As used
herein, a party shall be deemed “prevailing” when it recovers (i) as to a damage
claim, an aggregate of more than fifty percent (50%) of the damages which it
seeks among its various asserted claims exclusive of interest, attorney’s fees,
costs incurred and exemplary damages and (ii) as to an equity claim, substantial
injunctive or other equitable relief upon its asserted claim. Either of the
parties herein shall be entitled to request the trier of fact in any dispute,
litigation or arbitration between them, to determine which of the parties is
“prevailing”.
23. DAMAGES. The Company
and the Executive agree that the Executive will suffer a monetary loss if the
common shares underlying the stock options, warrants, Incentive Compensation or
other stock appreciation rights owned or held by Executive (the “Executive’s
Securities”) are not covered for resale under a current registration statement
under the Securities Act. Accordingly, so long as the Company is subject to
reporting and filing obligations under the Securities Act of 1934, the Company
shall deliver for each thirty (30) consecutive day period that the Executive’s
Securities are not covered by a current registration statement (or such lessor
pro-rata amount for any period of less than thirty days) to the Executive as
Liquidated Damages, an amount equal to five percent (5%) of the total aggregate
market value of the Executive’s Securities . The Company must pay the Liquidated
Damages in cash. The Liquidated Damages must be paid within ten (10) days after
the end of each thirty (30) day period or shorter part thereof for which
Liquidated Damages are payable.
WITNESS
WHEREOF, the parties have executed this Agreement as of the date first
hereinabove written.
DirectView
Holdings, Inc., a Delaware Corporation
Xxxxx
Xxxxx
Name
/s/ Xxxxx
Xxxxx
Signature
President
Title
Executive
Xxxxx
Xxxxxxx, a Florida resident
Xxxxx
Xxxxxxx
Name
/s/ Xxxxx
Xxxxxxx
Signature
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EXHIBIT
A
1. Incentive
Compensation: As compensation the Employee shall be entitled to Incentive
Compensation, in addition to Base Salary. Employee shall be entitled
to Incentive Compensation which shall be determined, and distributed as
follows;
(i) Operating Results: The
calculation of Operating Results will be made by the Company on an annual basis
as determined by the filing of audited consolidated financial statements of the
Company in its Form 10K filing. The calculation of the “Operating
Results” shall be made in accordance with the following
formula:
Total
Consolidated Net Income
+ Non
Cash
Charges
+ Dividends
= Operating
Results
(ii) “Total Consolidated Net
Income” (after taxes) shall be defined as the total consolidated net
income as reflected in the consolidated statements of operations of the Company
and its subsidiaries for the year ended December 31, 2010 as reported in the
audited consolidated financial statements (exclusive of our minority interest)
pursuant to generally accepted auditing standards as established by the Auditing
Standards Board (United States) and in accordance with the auditing standards of
the Public Company Accounting Oversight Board (United States) (“GAAP”).
(iii) “Non Cash Charges”
shall include all non cash charges expensed in the consolidated statements of
operations of the Company and its subsidiaries for the year ended December 31,
2010 as reported in the audited consolidated financial statements pursuant to
GAAP.
(iv) “Dividends” shall
include all payments, cash or other expenses by the Company which are not
related to the business operations of the subsidiaries of the
Company.
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2. Employee
shall be entitled to Incentive Compensation which shall be determined, and
distributed, as a percentage of Base Salary in accordance with the following
schedule:
|
2010 Operating Results
|
%
|
|
$ 3,000,000
|
200%
|
|
$ 2,000,000
|
150%
|
|
$ 1,000,000
|
100%
|
|
$ 500,000
|
75%
|
3. Employee
shall be entitled to receive such Incentive Compensation in accordance with the
following schedule:
i. 25%
of the Incentive Compensation shall be due no later than June 30,
2011
ii. 25%
of the Incentive Compensation shall be due no later than September 30,
2011
iii. 50%
of the Incentive Compensation shall be due no later than December 31,
2011
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