Exhibit 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement, (the "Agreement") by and between Presidion
Solutions, Inc. a Florida corporation, its subsidiaries and affiliates
(collectively the "Company") and Xxxxx X. Xxxxxx ("Employee") is hereby entered
into and effective as of February 12, 2003. This Agreement hereby supersedes any
other employment agreements or understandings, written or oral, between the
Company and Employee.
1. Employment and Duties.
(a) Employee shall be employed as the Company's Executive Vice
President and General Counsel and in such other executive capacity as the Board
of Directors may decide. Employee's duties may be changed and modified by the
Company's Board of Directors. Employee accepts this employment upon the terms
and conditions herein contained and, subject to paragraph 1(c), agrees to devote
his full-time, attention and efforts to promote and further the business of the
Company.
(b) Employee shall faithfully adhere to, execute and fulfill all
policies established by the Company.
(c) Except pursuant to the written approval of the Board of Directors,
Employee shall not, during the term of his employment, be engaged in any other
business activity pursued for gain, profit or pecuniary advantage. The foregoing
limitations shall not be construed as prohibiting Employee from making personal
investments in such form or manner as will neither require Employee's services
in the operations or affairs of the enterprises in which such investments are
made, nor violate the terms of paragraph 5.
2. Compensation, Benefits and Executive Perquisites. For all services
rendered by Employee, the Company shall compensate Employee as follows:
(a) Minimum Base Salary. The Minimum Base Salary payable to Employee
shall be $250,000 per year, payable on a regular basis in accordance with the
Company's standard payroll procedure. On at least an annual basis, the Board of
Directors of the Company will review Employee's performance and make any
increase to such base salary if, in its discretion, any such increase is
warranted.
(b) Bonus Plan. Employee shall be eligible for any incentive bonus plan
developed for the Company's key employees.
(c) Benefits and Perquisites. Employee shall be entitled to receive
benefits and perquisites from the Company in such form and to such extent as
specified below:
(i) participation for Employee and Employee's dependent family
members under health, hospitalization, disability, dental, life and
other insurance plans that the Company may have in effect from time to
time, with benefits provided to Employee to be at least equal to such
benefits provided to similarly situated Company executives.
(ii) paid vacation as determined by the Board of Directors for
its executive officers, but not less than four (4) weeks in each
calendar year (prorated for any calendar year in which employment is
less than a full year). Vacation days shall be taken at such time as
the parties mutually agree, acting reasonably, giving regard to the
performance of the essential duties of the Employee. Employee shall
also be entitled to all paid holidays given to the Company's executive
officers.
(iii) reimbursement for all costs and charges for the use of a
cellular telephone of the Employee's choice.
(iv) $1,500 per month for the use of an automobile of
Employee's choice. This reimbursement shall include Employee's expense
to lease or purchase the vehicle, obtain insurance, and maintain and
operate the vehicle (i.e. gasoline, oil and regular maintenance).
(v) reimbursement in an amount not to exceed $1,000 per month
for the dues and fees of a club of Employee's choice. Reimbursement for
food, beverage and entertainment at such club must qualify as a
business expense and be submitted under Section 2(c) (vi) of this
Agreement.
(vi) reimbursement for all business travel and other
out-of-pocket expenses reasonably incurred by Employee in the
performance of the services pursuant to this Agreement. All
reimbursable expenses shall be appropriately documented in reasonable
detail and submitted in a format and manner consistent with the
Company's expense reporting policy.
3. Place of Performance. The principal place of performance of Employee's
duties shall be at the Company's corporate headquarters in Troy, Michigan.
Employee understands and agrees that he may be required to spend substantial
time at other locations where the Company has facilities, but in no event shall
the Employee be required to spend more than 180 days in any calendar year
performing his duties away from the Company's Michigan headquarters.
4. Term and Termination. The term of this Agreement shall begin on the
date hereof and continue for five (5) years. (the "Term"). This Agreement and
Employee's employment may be terminated in any one of the following ways:
(a) Death. Upon the death of Employee, the Company shall pay the
Minimum Base Salary in effect at the date of death, Benefits and Perquisites
required by this Agreement to Employee's heirs or estate, to be paid when and as
if they would have been paid but for the Employee's death, for the full
remaining Term of this Agreement.
(b) Disability. Upon the Disability of Employee, the Company shall pay
the Minimum Base Salary in effect at the date of disability, Benefits and
Perquisites required by this Agreement to Employee, his trustee or conservator,
to be paid when and as if they would have been paid but for the Employee's
Disability, for the full remaining Term of this Agreement. For purposes of this
Agreement only, "Disability" shall mean that the Employee, as a result of a
physical or mental illness or injury, cannot perform in the usual manner enough
of the substantial and material duties to be able to successfully continue in
such capacity. Employee shall submit to all reasonable requests for physical and
mental examinations by physicians of Company's choosing. The Company shall have
the sole discretion of determining whether Employee is disabled for purposes of
this Agreement.
(c) Change of Control. In the event of a Change of Control, Employee
shall have the option to terminate this Agreement. In such case, the provisions
of Section 4(e) of this Agreement shall apply as if the Company had terminated
this Agreement Without Good Cause. A Change of Control means, and shall be
deemed to have occurred upon the occurrence of, any one of the following events:
(i) The acquisition in one or more transactions, other than
from the Company, by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of a
number of Company Voting Securities in excess of 30% of the Company Voting
Securities unless such acquisition has been approved by the Board;
(ii) Approval by the shareholders of the Company of a
reorganization, merger or consolidation, unless, following such reorganization,
merger or consolidation, all or substantially all of the individuals and
entities who were the respective beneficial owners of the Outstanding Common
Stock and Company Voting Securities immediately prior to such reorganization,
merger or consolidation, following such reorganization, merger or consolidation
beneficially own, directly or indirectly, more than 50% of, respectively, the
then outstanding
shares of Common Stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors or
trustees, as the case may be, of the entity resulting from such reorganization,
merger or consolidation in substantially the same proportion as their ownership
of the Outstanding Common Stock and Company Voting Securities immediately prior
to such reorganization, merger or consolidation, as the case may be; or
(iii) Approval by the shareholders of the Company of (i) a
complete liquidation or dissolution of the Company or (ii) a sale or other
disposition of all or substantially all the assets of the Company.
(d) By the Company for Good Cause. The Company may terminate this
Agreement at any time for "Good Cause", which shall be limited to: (i) fraud or
intentional misconduct in the performance of Employee's duties which are
materially injurious to the Company, (ii) the appropriation of a business
opportunity of Company (iii) the misappropriation of Company funds or property,
or (iv) the conviction, guilty plea, or plea of no contest to any felony which
results in the incarceration of the Employee. In the event this Agreement is
terminated by the Company for Good Cause, Company will have no further
obligations to make payments or provide benefits under this Agreement.
(e) By the Company Without Good Cause. If the Company terminates
Employee without Good Cause, the Company shall pay the Minimum Base Salary in
effect at the date of termination, Benefits and Perquisites required by this
Agreement to Employee (or his heirs or estate upon his death), to be paid when
and as if they would have been paid but for the Employee's termination, for the
full remaining Term of this Agreement.
(f) By Employee for Good Cause. Employee may, at his option, after
complying with this Section 4(f), terminate this Agreement in the event of a
material breach of the terms of this Agreement by the Company. Employee shall be
required to give written notice to the Company setting forth with particularity
the nature of the material breach. The Company shall have thirty (30) days
following its receipt of Employee's written notice in which to cure its breach
before Employee's termination of this Agreement shall be effective. In the event
Employee's termination shall be effective under this Section 4(f), the Company
shall pay the Minimum Base Salary in effect at the date of termination, Benefits
and Perquisites required by this Agreement to Employee (or his heirs or estate
upon his death), to be paid when and as if they would have been paid but for the
Employee's termination, for the full remaining Term of this Agreement. If
Employee terminates this Agreement without good cause (e.g., other than in
accordance with this Section 4(f)), he shall not be entitled to receive any
further compensation or benefits under the terms hereof.
5. Non Competition and Proprietary Information.
(a) Non Competition. Employee will not, during the period of Employee's
employment with the Company, and for a period of one (1) year immediately
following the termination of Employee's employment under this Agreement, for any
reason whatsoever, directly or indirectly, for Employee or on behalf of or in
conjunction with any other person, persons, company, partnership, corporation or
business of whatever nature:
(i) engaged, as an officer, director, shareholder, owner,
partner, joint venturer, or in any other capacity, whether as an employee,
independent contractor, consultant or adviser, or as a sales representative, in
any business offering any services or products in competition with the Company
within the States of Florida or Michigan. (the "Territory");
(ii) call upon any person within the Territory who is an
employee of the Company in a managerial capacity for the purpose or with the
intent of enticing such employee away from employment with the Company;
(iii) call upon any person or entity which is, or which has
been, within one (1) year prior to that time, a customer of the Company within
the Territory for the purpose of soliciting or selling products or services in
competition with Company; or
(iv) call upon any prospective acquisition candidate, on
Employee's own behalf or on behalf of a competitor, which candidate was, to
Employee's knowledge, either called upon by the Company or for which the Company
made an acquisition analysis, for the purpose of acquiring such entity.
(b) Proprietary Information. Company is engaged in a highly competitive
profession and relies substantially upon maintaining the confidentiality of its
Proprietary Information for the purpose of establishing and maintaining certain
competitive advantages. This Proprietary Information includes, but is not
limited to: names, addresses and contacts of clients and prospective clients,
all information concerning Company's computer programs, software, processes,
manuals, instructions, methods, management, financial affairs, purchasing,
sales, marketing and business plans. As a condition of employment, Employee is
obligated not to disclose or to use, except in his work for Company, any
Proprietary Information. This obligation exists both during and after Employee's
employment and for so long as the information remains confidential.
6. Return of Company Property. All records, business plans, financial
statements, manuals, memoranda, lists and other property delivered to or
compiled by Employee by or on behalf of the Company, or its representatives,
vendors or customers which pertain to the business of the Company shall be and
remain the property of the Company, as the case may be, and be subject at all
times to its direction and control. Likewise, all correspondence, reports,
records, charts, advertising materials and other similar data pertaining to the
business, activities or future plans of the Company held by Employee shall be
delivered promptly to the Company without request upon termination of Employee's
employment.
7. Complete Agreement. Employee has no oral representations,
understandings or agreements with the Company or any of its officers, directors
or representatives covering the subject matter of this Agreement. This written
Agreement is the final, complete and exclusive statement and expression of the
agreement between the parties and of all the terms of this Agreement, and it
cannot be varied, contradicted or supplemented by evidence of any prior or
contemporaneous oral or written agreements. This Agreement may not be later
modified except by a further writing signed by a duly authorized officer of the
Company and Employee, and no term of this Agreement may be waived except by a
writing signed by the party waving the benefit of such term.
8. Severability, Headings. If any portion of this Agreement is held
invalid or in operative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is possible, effect shall be given to the
intent manifested by the portion held invalid or inoperative. The paragraph
headings herein are for reference purposes only and are not intended in any way
to describe, interpret, define or limit the extent or intent of the Agreement or
of any part hereof.
9. Governing Law. This Agreement shall in all respects be construed
according to the laws of the State of Michigan.
PRESIDION SOLUTIONS, INC. EMPLOYEE
/S/ Xxxxx Xxxxxxxxxx /S/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxxxxxx, President Xxxxx X. Xxxxxx
