EXHIBIT 10.45
EMPLOYMENT AGREEMENT
(SENIOR VICE PRESIDENT-FINANCE AND
CHIEF FINANCIAL OFFICER)
THIS EMPLOYMENT AGREEMENT (the "Agreement") by and between Global
Preferred Holdings, Inc. ("Company"), and Xxxxxxx X. Xxxxx ("You" or "Your", and
together with the Company, collectively referred to as the "Parties"), is
entered into and effective as of the 4th day of March, 2002 (the "Effective
Date").(1) (1)Unless otherwise indicated, all capitalized terms used in this
Agreement are defined in the "Definitions" section attached as Exhibit A.
Exhibit A is incorporated by reference and is included in the Definition of
"Agreement."
WHEREAS, the Company is engaged in the Business;
WHEREAS, the Company desires to employ You as Senior Vice President -
Finance and Chief Financial Officer, and You desire to accept said employment
with the Company;
WHEREAS, Your position is a position of trust and responsibility with
access to Confidential Information, Trade Secrets and information concerning
employees and customers of the Company;
WHEREAS, the Trade Secrets and Confidential Information, and the
relationship between the Company and each of its employees and customers are
valuable assets of the Company and may not be converted to Your own use;
WHEREAS, the Company has agreed to employ You in exchange for Your
compliance with the terms of this Agreement; and
WHEREAS, the Company and You have agreed upon the terms and conditions
of Your employment with the Company and the Parties desire to express the terms
and conditions in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, it is agreed:
1. Employment and Duties.
A. Company shall employ You as Senior Vice President -
Finance and Chief Financial Officer in accordance with the terms and conditions
set forth in this Agreement. You accept employment on the terms set forth
herein. You shall report to the Chief Executive Officer of the Company.
B. You shall have such duties as set forth on Exhibit B
("Duties") and as may otherwise be assigned to You by the Chief Executive
Officer or the Board of Directors of the Company from time to time.
C. You agree to devote all necessary working time
required of Your position, to devote Your best efforts, skills and energies to
promote and advance the business and/or interests of the Company, and to fully
perform Your obligations under this Agreement. During Your employment, You shall
not render services to any other entity, regardless of whether You receive
compensation, without the prior written consent of the Company. You may,
however, (i) engage in community, charitable, and educational activities, (ii)
manage Your personal investments, and (iii) with the prior written consent of
the Company, serve on corporate boards or committees, provided that such
activities do not conflict or interfere with the performance of Your obligations
under this Agreement or conflict with the interests of the Company.
D. As an officer of the Company, You owe a duty of care
and loyalty to the Company, as well as a duty to perform Your Duties in a manner
that is in the best interests of the Company.
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E. You agree to comply with the policies and procedures
of the Company as may be adopted and changed from time to time, including those
described in the Company's employee handbook. Material changes to policies and
procedures may be made from time to time by the Board of Directors. If this
Agreement conflicts with such policies or procedures, this Agreement will
control.
2. Compensation.
A. Base Salary. During the term of this Agreement,
Company shall pay to You a base salary of $250,000.00 per year ("Base Salary"),
subject to all applicable withholdings. Your Base Salary may be adjusted
annually at the discretion of the Board of Directors. Your Base Salary shall be
paid to You in accordance with the Company's normal payroll practices.
B. Bonus. During the term of this Agreement, You will
receive an annual bonus if Your performance and the Company's performance meets
certain criteria established from year to year by the Company's Board of
Directors (the "Bonus"). You will not receive any Bonus if, due to termination
for Cause or upon your resignation for other than Good Reason, You are not
employed on the last day of the year for which the Bonus is to be paid,
otherwise the Bonus is to be prorated based on Your satisfaction of such
criteria as of Your termination date as determined by the Board of Directors in
its discretion. The Bonus will be subject to all applicable withholdings and
will be paid within ninety (90) days after the end of the calendar year.
C. Stock Options. As soon as possible after execution of
this Agreement, the Company will request that the Board of Directors grant You
an option to acquire 20,000 shares of the Company's common stock (the "Option"),
subject to successful completion of a Qualified Public Offering. The Option
shall be granted upon the effective date of such registration and the exercise
price of the Option shall be the price to the public of the common stock in such
offering. The Option will be subject to the terms and conditions of the
Company's Stock Incentive Plan and a Stock Option Grant Certificate (the "Stock
Option Certificate") to be prepared by the Company.
D. Executive Benefits. You shall be entitled to
participate in all benefit plans as shall be in effect for all executive level
personnel or applicable generally to employees of the Company from time to time,
subject to the terms and conditions of such plans and programs. You shall also
be entitled to reimbursement for all business travel and other out-of-pocket
expenses reasonably incurred by You in the performance of Your services pursuant
to this Agreement. All reimbursable expenses shall be appropriately documented
in reasonable detail by You upon submission of any request for reimbursement,
and in a format and manner consistent with Company's expense reporting policy.
You shall also be entitled to such other reasonable miscellaneous benefits as
the Board of Directors may deem appropriate.
E. Signing Bonus. The Company will pay You a signing
bonus of $9,200 (the "Signing Bonus") on the Effective Date. The Signing Bonus
will be subject to all applicable withholdings.
F. Relocation Expenses. The Company will pay You $59,450
towards the cost of relocating Your residence from Plymouth, Minnesota to
Duluth, Georgia, payable upon receipt by the Company of satisfactory evidence of
sale of Your home in Minnesota. In the event that Your total relocation costs
exceed that amount for reasons beyond Your control, or such costs are not
tax-deductible, then You may submit satisfactory evidence of all of such costs
to the Company and the Company will review and consider additional
reimbursement. The Company will also reimburse You for, or pay directly at the
Company's option, Your actual rental costs for up to six months of temporary
housing expenses in Atlanta (but not to exceed one month following the sale of
Your home in Minnesota) and up to eight coach class round trip airline tickets
for trips between Your current residence and Atlanta. If Your employment
terminates during Your first year of employment for any reason, other than those
reasons set forth in Sections 4B or 4F hereof, You agree to repay the Company
1/12th of the expenses described in this paragraph for each full month remaining
prior to the first anniversary of the Effective Date. You agree to sign a
promissory note reflecting this repayment obligation, upon request by the
Company.
3. Term. The term of this Agreement shall be for a period of one
(1) year, beginning on the Effective Date and ending on February 28, 2003 (the
"Initial Term"). The Agreement may be renewed for additional, consecutive one
(1) year terms (each, a "Renewal Term") following the termination of the Initial
Term or
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any Renewal Term, upon the written agreement of the parties entered into prior
to the expiration of the Initial Term or any Renewal Term, as the case may be.
The Initial Term and, if this Agreement is extended in accordance with this
Section, each Renewal Term, shall be referred to collectively herein as the
"Employment Period." If this Agreement is not renewed in accordance with this
Section, Your employment relationship will convert to an at-will relationship,
meaning that You may terminate Your employment with the Company at any time and
for any reason whatsoever simply by notifying the Company, and the Company may
terminate Your employment at any time with or without cause or advance notice.
If this Agreement is not renewed and Your employment converts to an at-will
relationship, the period in which You continue to be employed with the Company
shall not be included in the definition of "Employment Period" for purposes of
this Agreement.
4. Termination. This Agreement may be terminated upon the
occurrence of any of the following events:
A. Expiration of the term of this Agreement, including
the non-renewal of this Agreement in accordance with Section 3 above;
B. Your death, however, prorating of Bonus (to the
extent earned by You prior to Your death) and options (to the extent vested as
of the date of Your death) would transfer to Your estate subject to the terms
and conditions of the Company's Stock Incentive Plan and Your Stock Option
Certificate;
C. Your disability; "Disability" means Your inability,
due to the condition of Your physical, mental or emotional health, to regularly
and satisfactorily perform the Duties and Your responsibilities as an executive
of the Company or its subsidiaries for a continuous period in excess of three
months. If the existence of Your Disability shall be disputed by either Party,
the determination by a physician duly licensed to practice medicine that such
Disability exists shall be necessary to establish such Disability, unless You
refuse to submit to appropriate examinations at the request of the Board, in
which case the determination of the Board in good faith and after the requisite
period of Disability shall be conclusive as to whether such Disability exists;
D. Mutual written agreement between You and the Company
at any time;
E. For Cause, as defined below:
1. Your material breach of this Agreement,
provided that, if such breach is curable, You shall be entitled to
written notice and a thirty (30) day opportunity to cure such breach;
2. Any act or omission by You that is, or is
likely to be, materially injurious to the Company or the business
reputation of the Company;
3. Your dishonesty, fraud, malfeasance, gross
negligence or misconduct in the performance of the Duties or otherwise
having an adverse affect on the Company;
4. Your continued failure to satisfactorily
perform the Duties under this Agreement, to follow the direction
(consistent with the Duties) of the Chief Executive Officer, the Board
of Directors or any other individual to whom You report, or to follow
the policies, procedures and rules of the Company, provided that, if
such failure is curable, You shall be entitled to written notice and a
thirty (30) day opportunity to cure such breach;
5. Your arrest, indictment for, or conviction
of, or Your entry of a plea of guilty or no contest to, a felony or
crime involving moral turpitude; or
6. Your resignation for other than Good Reason.
You agree to give the Company sixty (60) days prior written notice of
such resignation.
F. Your resignation for Good Reason which shall exist if
the Company, without Your written consent, (i) takes any action which is
inconsistent with, or results in the reduction of, Your then current title,
duties or responsibilities, (ii) reduces Your then current Base Salary, (iii)
reduces the benefits to which You are entitled on the Effective Date, unless a
similar reduction is made for other executive employees; (iv) requires You to
relocate
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more than seventy-five (75) miles from the location of the Company's offices on
the Effective Date, (v) enters into a Change of Control transaction and the
successor corporation, if it is not the Company, does not assume (by law or
contract) the obligations of the Company hereunder, or (vi) does not offer to
renew this Agreement pursuant to Section 3 above. Good Reason shall not include
any isolated, insubstantial or inadvertent action that (i) is not taken in bad
faith, and (ii) is remedied by the Company within thirty (30) days of receiving
notice by You of such action. Good Reason shall only exist if You give written
notice to the Company that Good Reason exists within thirty (30) days following
the occurrence of the action upon which such Good Reason is based and specify
therein such action and, if such action is not cured as provided above, You
deliver your written resignation to the Board of Directors within five (5) days
following the date the cure periods expire.
G. Termination of employment by the Company, for any
reason not defined in sub-sections A-F above upon sixty (60) days written notice
to You.
5. Post Termination Payment Obligations.
A. If this Agreement terminates for any of the reasons
set forth in sub-sections 4A, 4B, 4C (except under the circumstances described
in Section 5D below), 4D or 4E of this Agreement, then You shall be entitled to
receive Your Base Salary through the termination date and any Bonus amounts you
would be entitled to under Section 2B and thereafter the Company shall have no
further obligations under this Agreement, but You shall continue to be bound by
Sections 7A, 7B and 7C, and all other post-termination obligations contained in
this Agreement.
B. If, within ninety (90) days following a Change of
Control, this Agreement terminates for the reasons set forth in sub-sections 4F
or 4G of this Agreement, then the Company shall pay You a separation payment
equal to Your Base Salary in effect as of the date of termination for (i) three
(3) months, if You are terminated prior to completion of a Qualified Public
Offering or (ii) twelve (12) months, if You are terminated after completion of a
Qualified Public Offering, payable in accordance with the Company's normal
payroll practices (or at the election of the Company, payable as a lump sum
payment), and any prorated Bonus payments (to the extent earned by You prior to
Your termination date). However, notwithstanding the forgoing, if the aggregate
amounts payable to You pursuant to this Section 5B, together with any other
payments made to You or on Your behalf by the Company as a result of such Change
of Control, would cause You to receive aggregate "parachute payments" (as
defined in Section 280G(b)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code")) exceeding three (3) times Your "base amount" (as defined
in Section 280G(b)(3) of the Code), then the aggregate amounts payable to You
pursuant to this Section 5B shall be reduced until Your aggregate "parachute
payments" do not exceed three (3) times Your "base amount."
C. If this Agreement terminates for the reasons set
forth in sub-sections 4F or 4G of this Agreement (other than under the
circumstances described in Section 5B), then the Company shall pay You a
separation payment equal to Your Base Salary in effect as of the date of
termination for (i) three (3) months, if You are terminated prior to completion
of a Qualified Public Offering or (ii) twelve (12) months, if You are terminated
after completion of a Qualified Public Offering, payable in accordance with the
Company's normal payroll practices (or at the election of the Company, payable
as a lump sum payment), and any prorated Bonus payments (to the extent earned by
You prior to Your termination date).
D. If this Agreement terminates for the reason set forth
in sub-section 4C of this Agreement by reason of an injury which occurs in the
course of the performance of Your duties for the Company, then the Company shall
pay You a separation payment equal to three (3) months base salary in effect as
of the date of termination, less the monthly amount that you are entitled to
receive under any and all long-term and short-term disability insurance
policies, payable over a period of three (3) months in accordance with the
Company's normal payroll practices (or at the election of the Company, payable
as a lump sum payment).
E. The Company's obligations under sub-section 5C shall
be reduced by the aggregate amount of any compensation, equity, fees or other
consideration received by You in connection with any services performed by You
for any person or entity after the date of termination, regardless that such
services were rendered by You as a partner, shareholder, consultant, employee or
in any other manner whatsoever.
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F. In the event that the term of this Agreement expires
or this Agreement terminates prior to expiration of the Employment Period, the
separation payments set forth in this Section 5 and the compensation received
during any notice period shall constitute full satisfaction of the Company's
obligations under this Agreement. The Company's obligation to make the
separation payments contemplated in Sections 5A through 5D shall be conditioned
upon Your:
1. Execution of a Separation and Release
Agreement in a form prepared by the Company whereby You release the
Company from any and all liability and claims of any kind; and
2. Compliance with the restrictive covenants
(Sections 7A, 7B and 7C) and all post-termination obligations contained
in this Agreement.
The Company's obligation to make the separation payments set
forth in this Section 5 shall terminate immediately upon any breach by You of
any post-termination obligations to which You are subject.
6. Books and Records. You agree that all files, documents,
records, customer lists, books and other materials which come into Your use or
possession during the term of this Agreement and which are in any way related to
the Company's business shall at all times remain the property of the Company,
and that upon request by Company or upon the termination of this Agreement for
any reason, You shall immediately surrender to Company all such property and
copies thereof.
7. Restrictive Covenants. You acknowledge that the restrictions
contained in this Section 7 are reasonable and necessary to protect the
legitimate business interests of the Company, and will not impair or infringe
upon Your right to work or earn a living after Your employment with the Company
ends.
A. Trade Secrets and Confidential Information. You
represent and warrant that: (i) You are not subject to any agreement that would
prevent You from performing Your duties for the Company or otherwise complying
with this Agreement, and (ii) You are not subject to or in breach of any
non-disclosure agreement, including any agreement concerning trade secrets or
confidential information owned by any other party, which relate to any
information you may use in performing your duties for the Company or the
observance of which would impair your ability to perform your duties for the
Company.
You agree that You will not: (i) use, disclose or reverse
engineer the Trade Secrets or the Confidential Information, except as authorized
by the Company; (ii) during Your employment with the Company, use or disclose
(a) any confidential information or trade secrets of any former employer or
third party, or (b) any works of authorship developed in whole or in part by You
during any former employment or for any other party, unless authorized in
writing by the former employer or third party; or (iii) upon Your resignation or
termination (a) retain Trade Secrets or Confidential Information, including any
copies existing in any form (including electronic form), which are in Your
possession or control, or (b) destroy, delete or alter the Trade Secrets or
Confidential Information without the Company's consent.
The obligations under this Section 7A shall: (i) with regard
to the Trade Secrets, remain in effect as long as the information constitutes a
trade secret under applicable law, and (ii) with regard to the Confidential
Information, remain in effect during the Restricted Period.
B. Non-Solicitation of Customers. During the Restricted
Period, You will not solicit any Customer of the Company for the purpose of
providing any goods or services competitive with the Business. The restrictions
set forth in this Section 7B apply only to the Customers with whom You had
Contact.
C. Non-Recruit of Employees. During the Restricted
Period, You will not, directly or indirectly, solicit, recruit or induce any
Employee to (a) terminate his or her employment relationship with the Company or
(b) work for any other person or entity engaged in the Business.
8. Work Product. Your employment duties may include inventing in
areas directly or indirectly related to the Business or to a line of business
that the Company may reasonably be interested in pursuing. All Work Product
shall constitute work made for hire and owned by the Company. If (i) any of the
Work Product may not be
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considered work made for hire, or (ii) ownership of all right, title and
interest to the legal rights in and to the Work Product will not vest
exclusively in the Company, then, without further consideration, You hereby
assign all presently-existing Work Product to the Company, and agree to assign,
and automatically assign, all future Work Product to the Company.
The Company will have the right to obtain and hold in its own
name copyrights, patents, design registrations, proprietary database rights,
trademarks, rights of publicity and any other protection available in the Work
Product. At the Company's request, You agree to perform, during or after Your
employment with the Company, any acts to transfer, perfect and defend the
Company's ownership of the Work Product, including, but not limited to: (i)
executing all documents (including a formal assignment to the Company) necessary
for filing an application or registration for protection of the Work Product (an
"Application"), (ii) explaining the nature of the Work Product to persons
designated by the Company, (iii) reviewing Applications and other related
papers, or (iv) providing any other assistance reasonably required for the
orderly prosecution of Applications.
You agree to provide the Company with a written description of
any Work Product in which You are involved (solely or jointly with others) and
the circumstances surrounding the creation of such Work Product.
9. Release. You consent to the Company's use of Your image,
likeness, voice or other characteristics in the Company's products or services.
You release the Company from any claims which You have or may have for right of
publicity, copyright infringement, or any other causes of action arising out of
the use, distribution, adaptation, reproduction, broadcast or exhibition of such
characteristics.
10. Post-Employment Disclosure. During the Restricted Period, you
will disclose that you have covenants (and the nature of those covenants) to
persons and/or entities to whom You provide goods and services. If, during the
Restricted Period, You provide services to another person or entity which
provides goods or services competitive with the goods or services provided by
the Company You shall provide the Company with such person or entity's name,
Your job title and a description of the services You will provide.
11. Injunctive Relief. You agree that if You breach Sections 7, 8,
9 and/or 10 of this Agreement: (i) the Company would suffer irreparable harm;
(ii) it would be difficult to determine damages, and money damages alone would
be an inadequate remedy for the injuries suffered by the Company, and (iii) if
the Company seeks injunctive relief to enforce this Agreement, You will waive
and will not (a) assert any defense that the Company has an adequate remedy at
law with respect to the breach, or (b) require that the Company submit proof of
the economic value of any Trade Secret or Confidential Information. Nothing
contained in this Agreement shall limit the Company's right to any other
remedies at law or in equity.
12. Severability. The provisions of this Agreement are severable.
If any provision is determined to be invalid, illegal or unenforceable, in whole
or in part, the remaining provisions and any partially enforceable provisions
shall remain in full force and effect.
13. Attorneys' Fees. In the event of litigation relating to this
Agreement, the prevailing party shall be entitled to recover attorneys' fees and
costs of litigation in addition to all other remedies available at law or in
equity.
14. Arbitration With Respect to Certain Matters. The parties agree
to submit to arbitration, in accordance with these provisions, any claim or
controversy arising from or related to the alleged breach of this Agreement,
provided that claims or disputes of the types described in Sections 7, 8, 9, 10
or11 above shall not be subject to this Section 14. The parties further agree
that, other than with respect to claims or disputes of the types described in
Section 11 above, the arbitration process agreed upon herein shall be the
exclusive means for resolving all disputes made subject to arbitration herein,
but that no arbitrator shall have authority to expand the scope of these
arbitration provisions. Any arbitration hereunder shall be conducted under the
Model Employment Procedures of the American Arbitration Association (AAA) and
the parties agree that the Federal Arbitration Act shall govern the proceedings.
Either party may invoke arbitration procedures herein by written notice for
arbitration containing a statement of the matter to be arbitrated. The parties
shall then have fourteen (14) days in which they may identify a mutually
agreeable, neutral arbitrator. After the fourteen (14) day period has expired,
the parties shall prepare and submit to the AAA a joint submission, with each
party to contribute half of the appropriate administrative fee. In the event the
parties cannot agree upon a neutral arbitrator within fourteen (14) days after
written notice for arbitration is
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received, their joint submission to the AAA shall request a panel of nine
arbitrators who are practicing attorneys with professional experience in the
field of employment law, and the parties shall attempt to select an arbitrator
from the panel according to AAA procedures. Unless otherwise agreed by the
parties, the arbitration hearing shall take place in Atlanta, Georgia at a place
designated by the AAA. All arbitration procedures hereunder shall be
confidential. The arbitrator shall have authority to include all or any portion
of costs of such arbitration in an award. The arbitrator shall not have the
power or authority to award indirect, special, incidental, consequential,
exemplary, or punitive damages. The arbitrator may include equitable relief. Any
arbitration awarded shall be accompanied by a written statement containing a
summary of the issues in controversy, a description of the award, and an
explanation of the reasons for the award. It is understood and agreed by the
parties that their agreements herein concerning arbitration do not otherwise
alter the terms and conditions of employee's employment as provided by this
agreement.
15. Waiver. Any Party's failure to enforce any provision of this
Agreement shall not act as a waiver of that or any other provision. Any Party's
waiver of any breach of this Agreement shall not act as a waiver of any other
breach.
16. Entire Agreement. This Agreement, including Exhibits A and B,
which are incorporated by reference, constitutes the entire agreement between
the Parties concerning the subject matter of this Agreement. This Agreement
supersedes any prior communications, agreements or understandings, whether oral
or written, between the Parties relating to the subject matter of this
Agreement. Other than terms of this Agreement, no other representation, promise
or agreement has been made with You to cause You to sign this Agreement.
17. Amendments. This Agreement may not be amended or modified
except in writing signed by both Parties.
18. Successors and Assigns; Survival. This Agreement shall be
assignable to, and shall inure to the benefit of, the Company's successors and
assigns, including, without limitation, successors through merger, name change,
consolidation or sale of a majority of the Company's stock or assets, and shall
be binding upon You. You shall not have the right to assign Your rights or
obligations under this Agreement. The covenants and provisions contained in
Sections 5 through 23 of this Agreement shall survive cessation of Your
employment with the Company, regardless of the reason for cessation of Your
employment and regardless of who causes the cessation.
19. Governing Law. The laws of the State of Georgia shall govern
this Agreement. If Georgia's conflict of law rules would apply another state's
laws, the Parties agree that Georgia law shall still govern.
20. No Strict Construction. If there is a dispute about the
language of this Agreement, the fact that one Party drafted the Agreement shall
not be used in its interpretation.
21. Notice. Whenever any notice is required, it shall be given in
writing addressed as follows:
To Company: Global Preferred Holdings, Inc.
00000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
With a Copy to: Xxxxxx, Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx, Esq.
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To employee: Xxxxxxx X. Xxxxx
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Notice shall be deemed given and effective three (3) days after the
deposit in the U.S. mail of a writing addressed as above and sent first class
mail, certified, return receipt requested, or when actually received. Either
Party may change the address for notice by notifying the other party of such
change in accordance with this Section.
22. Consent to Jurisdiction and Venue. You agree that any claim
arising out of or relating to this Agreement shall be (i) brought in the
Superior Court of Xxxxxx County, Georgia, or (ii) brought in or removed to the
United States District Court for the Northern District of Georgia, Atlanta
Division. You consent to the personal jurisdiction of the courts identified
above. You waive (i) any objection to jurisdiction or venue, or (ii) any defense
claiming lack of jurisdiction or improper venue, in any action brought in such
courts.
23. Affirmation. YOU acknowledge that YOU HAVE carefully read this
Agreement, YOU know and understand its terms and conditions, and YOU HAVE had
the opportunity to ask the Company any questions YOU may have had prior to
signing this Agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
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[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first above written.
GLOBAL PREFERRED HOLDINGS, INC.:
By:/s/ Xxxxxx X. XxXxxxxx
-------------------------------------------
Xxxxxx X. XxXxxxxx, Chief Executive Officer
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Xxxxxxx X. Xxxxx
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EXHIBIT A
DEFINITIONS
A. "Business" shall mean the business of providing reinsurance for life
insurance and annuities.
B. "Change of Control" is used herein as defined in the Company's Stock
Incentive Plan.
C. "Company" means Global Preferred Holdings, Inc., its parents,
subsidiaries, affiliates and all related companies, as well as their
respective officers, directors, shareholders, employees, agents and any
other representatives.
D. "Confidential Information" means information of the Company, to the
extent not considered a Trade Secret under applicable law, that (i)
relates to the Business, (ii) possesses an element of value to the
Company, (iii) is not generally known to the Company's competitors, and
(iv) would damage the Company if disclosed. Confidential Information
includes, but is not limited to, (i) future business plans, (ii) the
description, schematic or design of products or future products of the
Company, (iii) advertising or marketing plans, (iv) information
regarding independent contractors, employees, clients and customers of
the Company, and (v) information concerning the Company's financial
structure and methods and procedures of operation. Confidential
Information shall not include any information that (i) is or becomes
generally available to the public other than as a result of an
unauthorized disclosure, (ii) has been independently developed and
disclosed by others without violating this Agreement or the legal
rights of any party, or (iii) otherwise enters the public domain
through lawful means.
E. "Contact" means any interaction between You and a Customer, which (i)
takes place in an effort to establish, maintain, and/or further a
business relationship on behalf of the Company and (ii) occurs during
the last year of Your employment with the Company (or during Your
employment if employed less than a year).
F. "Customer" means any person or entity to whom the Company has sold its
products or services, or solicited to sell its products or services.
G. "Employee" means any person who (i) is employed by the Company at the
time Your employment with the Company ends, (ii) was employed by the
Company during the last year of Your employment with the Company (or
during Your employment if employed less than a year), or (iii) is
employed by the Company during the Restricted Period.
H. "Qualified Public Offering" is a firm commitment underwritten public
offering of common stock completed by the Company before December 31,
2003.
I. "Restricted Period" means the time period during Your employment with
the Company, and for one year after Your employment with the Company
ends.
J. "Trade Secrets" means information of the Company, and its suppliers,
clients and customers, without regard to form, including, but not
limited to, technical or non-technical data, formula, pattern,
compilation, program, device, method, technique, drawing, process,
financial data, financial plans, product plans, or lists of actual or
potential customers or suppliers which is not commonly known by or
available to the public and which information (i) derives economic
value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and (ii) is the
subject of efforts that are reasonable under the circumstances to
maintain its secrecy.
K. "Work Product" means (a) all ideas, concepts, marketing strategies,
management techniques, product development, methods, designs, analyses,
drawings, reports, and/or works of authorship, including but not
limited to, discoveries, ideas, concepts, properties, formulas,
compositions, methods, programs, procedures, systems, techniques,
products, improvements, innovations, writings, pictures, audio, video,
images of You,
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and artistic works and (b) any subject matter protected under patent,
copyright, proprietary database, trademark, trade secret, rights of
publicity, confidential information, or other property rights,
including all worldwide rights therein, that is or was conceived,
created or developed in whole or in part by You while employed by the
Company and that either (i) is created within the scope of Your
employment, (ii) is based on, results from, or is suggested by any work
performed within the scope of Your employment and is directly or
indirectly related to the Business or a line of business that the
Company may reasonably be interested in pursuing, (iii) has been or
will be paid for by the Company, or (iv) was created or improved in
whole or in part by using the Company's time, resources, data,
facilities, or equipment.
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EXHIBIT B
SENIOR VICE PRESIDENT - FINANCE AND CHIEF FINANCIAL OFFICER
POSITION RESPONSIBILITIES:
Report to the Chief Executive Officer on a monthly basis or as otherwise
requested.
Lead, manage and direct financial functions of the Company, including oversight
of the accounting, actuarial and investor relations' activities on a day-to-day
basis with responsibility for vision, process, growth, profitability and
effectively implementing the Company's business strategies.
Coordinate the daily financial business of the Company. The actions and
decisions of the Chief Financial Officer shall reflect good professional conduct
and good communication in relationship to all employees and the profitable
operation of the Company.
Develop the annual budget of the Company, present it to the Chief Executive
Officer and Board of Directors for approval, and adhere to the budget at all
times.
Implement the business plan as approved by the Board, including such interaction
with investors, analysts, rating agencies and customers as required.
On a monthly basis, work with the bookkeeper, accountant(s) and Controller to
provide the Chief Executive Officer and Board of Directors with complete
financial data of the Company to include accurate information statement, balance
sheet and other relevant financial data as requested by the Board.
Prepare and maintain corporate records for periodic, spot audits by Company.
Oversee the financial management of the Company, keep accurate records, and
perform those functions necessary for the orderly operation of the Company,
including such involvement in the actuarial and investment functions that may be
required.
Adhere to all federal and local laws as they relate to the operation of the
Company, including adherence to accounting principals generally accepted in the
United States of America.
Develop, implement, and maintain the Company's stock option plans.
Assist in raising capital, as required.
Negotiate transactions with partners and customers as required.
Perform other duties as assigned by Chief Executive Officer or such other
executive as may be designated by the Chief Executive Officer or Board of
Directors of Company, from time to time.
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