EXHIBIT 10.102
EXECUTIVE EMPLOYMENT
AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT made as of the ____
day of _______, 1996, by and between Systems and Services Technologies,
Inc., a Delaware corporation, with offices at 000 Xxxxxxxxxx Xxxx., Xxxxxx
Xxxx, Xxx Xxxxxx 00000 (the "Company"), and Xxxx Xxxxxxxx, residing at
00000 Xxx, Xxxxxxxx Xxxx, Xxxxxx 00000 (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company is a wholly-owned subsidiary of The
Aegis Consumer Funding Group, Inc. ("Aegis");and
WHEREAS, the Company desires to employ the Executive, and the
Executive desires to be employed by the Company, upon the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto agree as follows:
1. Employment. The Company agrees to and does hereby employ
the Executive, and the Executive agrees to and does hereby accept
employment by the Company, subject to the terms and conditions herein set
forth.
2. Term. The term of the Executive's employment hereunder shall
commence on the date hereof (the "Effective Date") and, unless sooner
terminated as set forth below, shall terminate on July 1, 2001 (such period
hereinafter referred to as the "Term"). The Term is subject to extension
or reduction in accordance with the provisions of this Agreement.
3. Duties.
(a) During the term, the Executive shall be employed as
President of the Company and shall be in charge of and responsible for the
general supervisory duties normally and customarily attendant to such office
in a business entity of the size and type of the Company as such duties may
be reasonably defined by the Board of Directors of the Company (the
"Board"). Such duties may include coordination of the operational
functions for Personnel administration, Data Processing and Loan
Servicing.
(b) The duties of the Executive may be changed from time to
time by the Board, provided that, except as permitted in accordance with
the provisions of Section 7(d) hereof, the Executive shall not be given
duties unrelated to, or not generally associated with, the executive level of
his position immediately prior to such change.
(c) The Executive will, to the best of the Executives abilities, in
good faith and with integrity, devote his full time, attention, energy and
skill to the fulfillment of his duties hereunder. The foregoing,
notwithstanding, the Executive will be permitted to own, as an inactive
investor, securities of a corporation whose equity securities are registered
under Section 12b or 12g of the Exchange Act, so long as his beneficial
ownership in any one such corporation shall not in the aggregate constitute
more than five percent (5%) of any class of equity securities of such
corporation.
(d) The Executive will be subject to such policies and procedures
as are from time to time established for employees of the Company
generally, except to the extent that such policies or procedures are contrary
to the terms of this Agreement or are inconsistent with the Executive's
position and duties.
(e) It is hereby acknowledged that, subject to Paragraph 9
hereof, the Executive may either presently, or in the future, be involved in
charitable or community activities so long as such other activities do not
unreasonably interfere with the performance by the Executive of his duties
hereunder and do not require more than five percent (5%) of his time
during working hours.
(f) Except as herein provided, the Company shall not require the
Executive to relocate his residence out of the greater Kansas City area in
the performance of his duties; provided, however, that the Company shall
not be deemed to have required a relocation of his residence in the event
the Company would require the Executive to perform his normal duties
outside of the greater Kansas City area for less than six months in any
calendar year. In the event the Executive is required to relocate beyond 150
miles from the city limits of Kansas City, Kansas, the base compensation
of the Executive as set forth in Section 4(a) hereof shall be increased at the
reasonable discretion of the Board to the extent necessary to reflect a
material increase in the cost of living related to the relocation. In addition,
upon any relocation required by the Company, the Company shall
reimburse the Executive for all out of pocket expenses incurred by the
executive reasonably related to the relocation including but not limited to
such expenses as those related to transportation of personal effects, closing
costs for a new residence, brokerage fees with respect to the sale of the
existing residence, and reasonable hotel accommodations during that period
of time reasonably necessary to locate a new residence. In the event that
the Executive should fail to close on the sale of his existing residence
within a period of six (6) months following the month in which the
Company shall have requested the Executive to relocate, the Company, at
the request of the Executive, shall purchase such residence from the
Executive, on or before the last day of the ninth (9) month following the
month in which relocation was requested, for the fair market value of
such residence. Fair market value" shall be determined as the average
between two appraisals, one obtained from a real estate brokerage firm
chosen by the Company and one by a firm chosen by the Executive; both
real estate firms shall be prominent firms generally recognized in the
immediately surrounding geographic area.
4. Compensation.
(a) Base Salary. In consideration for services performed
hereunder, the Company shall pay to the Executive an annual salary of
$125,000. during each year of the Term, subject to adjustment as herein
provided and in installments payable in accordance with the Company's
customary payroll practices. In addition, the Company shall reimburse the
Executive for all expenses reasonably incurred by him in connection with
the performance of his duties hereunder and the business of the Company
upon the submission to the Company of appropriate receipts therefor.
(b) Adjustments. Subsequent to June 30, 1997, the annual salary
of the Executive shall be adjusted annually during the Term (for each
twelve month period subsequent to June 30, 1997) based upon a comparison
of the actual "Net Pre-tax Income" (as hereinafter defined) of the Company
for the fiscal year of the Company immediately preceding the applicable
year for which the adjustment is to be made to the "Performance Target"
(as hereinafter defined) for such` fiscal year. The Performance Target
shall mean the anticipated net pre-tax income or loss of the Company
applicable for each fiscal year of the Company as set forth on Schedule A
hereto. Not later than 90 days following the end of each fiscal year of the
Company ending after June 30, 1996, the actual Net Pre-tax Income of the
Company for such fiscal year (determined in accordance with generally
accepted accounting practices consistently applied ("GAAP") by the
accounting firm normally retained by the Company) shall be compared to
the Performance Target for such fiscal year. In the event that the actual
Net Pre-tax Income exceeds the Performance Target (or in the event any
pre-tax loss is less than the pre-tax loss reflected in the Performance Target,
(as the case may be) the annual salary of the Executive for the next
ensuing fiscal year shall be increased by ten percent (10%) of the
Executive's annual base salary for the previous year. Immediately
subsequent to the determination of any adjustment of base compensation
hereunder, the base compensation shall be adjusted retroactively to the
commencement of the fiscal year for which it is applicable.
(c) Bonus. In order to provide performance-based incentive
compensation to the Executive, the Company hereby agrees to pay the
Executive, in addition to the base salary set forth in Subparagraphs (a) and
(b) hereof, a bonus in respect of each fiscal year subsequent to June 30,
1996 during the Executive's employment hereunder (provided, that the
Executive was employed at least 6 months during the applicable fiscal
year) calculated in the manner set forth hereinbelow. For purposes hereof,
and for each of the first two fiscal years subsequent to June 30, 1996 during
the employment of the Executive hereunder, the Executive shall receive a
bonus equal to the greater of (i) $50,000 or (ii) three and one third percent
(3.33%) of the Company's Net Pre-Tax Income for each such fiscal year
in which the Net Pre Tax Income equals or exceeds (or with respect to
losses is less than) the Performance Targets for such periods; for each fiscal
year during the Term subsequent to the first two fiscal years ending after
June 30,1996, and provided that the Executive is employed at least 6
months during of the applicable fiscal year, the Executive shall receive a
bonus equal to three and one third percent (3.33%) of the Net Pre-tax
Income of the Company for each such fiscal year in which the Net Pre-
Tax Income of the Company equals or exceeds (or with respect to losses,
is less than) the Performance Targets for that fiscal year.
Any bonuses earned in accordance with the provisions of this
Subsection shall be paid within 90 days following the end of each fiscal
year of the Company with respect to which such bonuses are payable.
Anything herein to the contrary notwithstanding, (i) no bonus shall
be deemed earned or be paid or payable to the Executive if on or before the
end of the applicable Adjustment Year such bonus would otherwise be
payable hereunder, the employment of the Executive was terminated by the
Company for "Cause" (as hereinafter defined) or by the Executive without
"Good Reason" (as hereinafter defined) and (ii) other than is provided in
subsection (i), the earning of bonuses with respect to any fiscal year in
which the Executive is employed for less than the full fiscal year shall be
pro rated based on the number of months the Executive was employed by
the Company during such fiscal year.
(d) Net Pre-Tax Income of the Company. For purposes hereof
the Net Pre-Tax Income of the Company shall be that amount determined
by the independent accountants of the Company with respect to a given
fiscal year. In making such determination, the accountants shall calculate
actual net Pre Tax Income on the basis of GAAP without giving effect to
any bonus paid pursuant to subsection (c) of this Paragraph 4. Such
determination shall also be made solely on the basis of the operations of the
Company and any subsidiaries thereof and shall take into account only those
items of revenue and expense arising from transactions or charges between
the Company and Aegis as are described in Schedule B hereto or as are
otherwise specifically agreed to by the parties hereto in writing. The
determination of the accountants for the Company shall be final, conclusive
and binding for all purposes, absent manifest error.
5. Vacation. The Executive shall be entitled to three weeks' paid
vacation during the first two years of his employment hereunder and four
weeks paid vacation during each year thereafter. Vacation shall be taken
at times mutually agreeable to the Executive and the Company. In no event
may vacation be accumulated from year to year and the Executive in no
circumstance shall receive compensation for vacation which was not taken;
any vacation time not taken during a year of employment shall be forfeited.
6. Benefits. Throughout the Term, the Executive shall be eligible
to participate in any pension, profit-sharing, stock option or similar plan or
program of the Company now existing or established hereafter for the
benefit of its employees generally, to the extent that he is eligible under the
general provisions thereof. The Executive shall also be entitled to
participate in any group insurance, hospitalization, medical, health and
accident, disability or similar or non-similar plan or program of the
Company now existing or established hereafter for the benefit of its
employees or executives generally, to the extent that he is eligible under the
general provisions thereof.
7. Termination of Executive's Employment.
(a) Notwithstanding any provisions contained herein to the contrary,
the Executive's employment may be terminated by the Company upon the
Executive's death or disability (as defined below) or for Cause (as defined
below), and the Executive may terminate his employment for Good Reason
(as defined below);
(b) For purposes of this Agreement, "disability" shall mean the
Executive is mentally or physically disabled from properly and fully
performing his duties and responsibilities hereunder for a period of 120
consecutive days or for 180 days, even though not consecutive, within any
360-day period, all as evidenced by the written certification of a qualified
medical doctor selected by the Company;
(c) For purposes of this Agreement, "Cause" shall mean any action
or inaction on the part of Executive (an "Event") which could materially
and adversely affect the Company and which legally constitutes cause for
termination of an executive's employment agreement, which Event (i) is not
cured within fifteen (15) business days after written notice from the
Company that it deems such event to constitute "Cause", and (ii) which
Event, if cured on one occasion, does not reoccur on more than one
additional occasion. The Company and the Executive agree that the Event
referred to in the notice of termination must be of sufficient significance to
permit a reasonable conclusion that the Company could suffer a material
and adverse effect as a result thereof. In no event shall "Cause" be deemed
to include any action or inaction on the part of the Executive undertaken in
good faith, consistent with his fiduciary duties to the Company, which are
within the "business judgement rule" as such rule or embodiment thereof
has been interpreted in accordance with the laws of the applicable
jurisdiction as set forth in Section 11 hereof.
(d) For purposes of this Agreement, "Good Reason" shall mean any
of the following: (i) the assignment to the Executive of duties inconsistent
with the Executive's position, duties, or responsibilities, as described
herein, provided that the Board shall be permitted to modify the duties of
the Executive if the Board, (x) determines in good faith that such
modification is in the best interests of the Company, (y) the Executive is
given or maintains an "executive level" position within the Company and
(z) the Company has failed to demonstrate financial performance within ten
percent (10%) of the Performance Targets for any two consecutive fiscal
quarters subsequent to July 1, 1997 or (ii) a material breach of the terms
of this Agreement by the Company (x) which breach remains uncured for
a period of 15 days after written notice thereof is received by the Company
and (y) which breach if cured on one occasion does not reoccur on more
than one additional occasion.
(e) In the event that the Executive's employment hereunder is
terminated as a result of death or disability of Executive or for Cause by
the Company, or without Good Reason by the Executive, or in the event
that this Agreement is not renewed or extended at the end of the Term, then
the Company shall have no further obligations or liabilities to the Executive
hereunder, such that all benefits and salary provided for within this
Agreement shall terminate simultaneously with the termination of the
Executive's employment except for benefits, bonuses and salary earned and
accrued through the date of such termination; provided, however, that in no
event shall the Executive be entitled to receive any bonuses, whether or not
earned or accrued, if his employment is terminated by the Company for
Cause or by the Executive without good reason. Nothing in this subsection
(e) shall supersede any rights of the Executive to receive any amounts or
benefits otherwise due to him upon the occurrence of any of the events
described in the immediately preceding sentence, whether such rights are
created by this Agreement or otherwise.
8. Covenants Not to Compete.
(a) Executive agrees that during that period of time from
the date hereof through July 1, 2001 (whether or not the Executive is
actually employed for the entire period that is herein contemplated to be the
Term) in addition to any extensions or renewals thereof and provided that
the Company continues to faithfully perform all of its obligations hereunder
and provided that Executive has not been terminated by the Company
without Cause or by Executive with Good Reason, Executive will not,
without the prior consent of the Company, whether directly or indirectly,
as principal or as agent, officer director, employee, consultant, or
otherwise, alone or in association with any other person, firm, corporation
or other business organization, carry on, or be engaged, concerned, or take
part in, or render services to or own, share in the earnings of, or invest in
the stock, bonds, or other securities of any person, firm, corporation, or
other business organization engaged anywhere in the United States, Canada,
Europe or South America in the business of financing or servicing loans for
the purchase of automobiles which could be deemed competitive to the
business of the Company or to any other business which the Company or
any member of the "Affiliated Group" is engaged in or is the process of
implementing at any time during the time during which the Executive is
employed (a "Similar Business"). Notwithstanding the foregoing, Executive
may, following any termination hereof, be so employed or associated with
an organization which finances or services loans solely and exclusively for
its own account, whether or not such activity is competitive to the business
of the Company. "Affiliated Group" is defined as the Company, or any of
its subsidiaries. The foregoing notwithstanding, during the Term Executive
may invest in stock, bonds, or other securities of any Similar Business (but
without otherwise participating in such Similar Business) if such stock,
bonds, or other securities are listed on any national or regional securities
exchange or have been registered under Section l2(g) of the Securities
Exchange Act of l934 provided that such investment does not exceed, in the
case of any class of the capital stock of any one issuer, 2% of the issued
and outstanding shares, or, in the case of other securities, 2% of the
aggregate principal amount thereof issued and outstanding.
(b) As a separate and independent covenant, Executive
agree that during the Term, including any extensions or renewals thereof,
Executive will not, without the consent of the Company, in any way,
directly or indirectly (except in the course of Executive's employment with
the Company), for the purpose of conducting or engaging in any Similar
Business, call upon, solicit, advise or otherwise do, or attempt to do,
business with any clients, customers or accounts of the Affiliated Group
with whom Executive had any dealings during the course of Executive's
employment with the Company or any of its affiliates or interfere or attempt
to interfere with any officers, employees, representatives or agents of the
Affiliated Group, or induce or attempt to induce any of them to leave the
employ of or violate the terms of their contracts with the Affiliated Group.
(c) If, in any judicial proceeding, a court shall determine
that the geographical, temporal or other scope of any of the covenants
contained in this Paragraph 9 is so broad or long as to be unenforceable,
then the geographical or other scope of such covenant shall be deemed to
be restricted so as to be enforceable under applicable law.
(d) Executive's obligations under this Section 8 hereof
shall survive any termination of this Agreement by the Company with
Cause or by the Executive without Good Reason; provided, however, that
the survival of these provisions shall not operate to extend the length of
time the Executive shall be prohibited from engaging in the activities
prohibited hereunder beyond July 1, 2001 unless the employment of the
Executive is extended or renewed beyond such time in which event such
obligations shall be extended to be co-terminus with the actual termination
of Executive's employment.
(e) In the event of a breach or threatened breach by
Executive of any provision of this Section 8 hereof, the Company shall be
entitled to seek an injunction restraining such breach, but nothing herein
shall be construed as prohibiting the Company from pursuing any additional
remedy available to the Company for such breach or threatened breach.
(f) The obligations of the Executive under this Section 8
shall not apply and shall terminate if the termination of this Agreement was
by the Company without Cause or by the Executive with good reason.
9. Covenants Regarding Confidential Information and
Proprietary Rights.
(a) Confidential Information Defined. As used herein,
"Confidential Information" means any non-public information, and any
document or media containing non-public information, concerning the
"Business Group" (defined for purposes hereof as the Affiliated Group and
any of the Affiliated Group's actual or prospective customers, suppliers,
contractor and co-venturers) or concerning any actual or planned
discoveries, inventions, developments, improvements, technology, know-
how, processes, products, services, businesses, business opportunities,
operations, activities or plans of or belonging to the Affiliated Group
(including, without limitation, technical formulae and designs, computer
hardware and software, databases, original works of authorship, customer
lists, bills of material, business plans, financial information, trade secrets
and other proprietary information) provided that Confidential Information
shall not include such portion of the aforesaid information which has
become or hereafter becomes public knowledge within the industry through
no fault of Executive's own.
(b) Confidentiality. It is understood and agreed that prior
to and during the Term, Executive has and will become aware of
Confidential Information, the unauthorized disclosure of which may harm
the Company or another member of the Business Group. Accordingly,
Executive agrees that, except as expressly authorized by the Company or
to the extent the Executive reasonably believes it necessary in order to
fulfill Executive's duties under this Agreement, both during and after the
Term, Executive will never divulge to others or appropriate to Executive's
own use, or to the use of any third party, any Confidential Information
conceived of, or obtained, by Executive prior to or during the Term. Upon
termination of this Agreement for whatever reason or whenever requested
by the Company, Executive will promptly deliver to the Company all
documents, media or other materials containing Confidential Information
which are in Executive's possession or under Executive's control.
(c) Proprietary Property. Executive agrees that all
inventions, original works of authorship, developments, improvements and
trade secrets (unless (i) not relating to the Company's actual or
demonstrably anticipated business, products, services or research and
development and (ii) developed entirely on Executive's own time, not as a
result of any work performed by Executive for the Company, and without
use of equipment, supplies, facilities or trade secrets of the Company)
conceived of, developed or reduced to practice by Executive, whether alone
or in conjunction with others, during the period of time Executive is in the
employ of the Company ("Proprietary Property") shall be the property of
the Company. Executive agrees to disclose promptly to the Company or
its counsel any Proprietary Property and to take such actions (at the
Company's request and expense) both during and after the Term necessary
or convenient to vest in the Company all of Executive's rights in such
Proprietary Property including, without limitation, the execution of any
applications, assignments or other instruments necessary or convenient in
order to assign all of Executive's interest therein to the Company or its
nominee and to apply for and obtain copyright protection or Letters Patent
of the United States or any foreign country or to otherwise protect the
Company's interest therein.
(d) Remedies. In the event of a breach or threatened
breach by Executive of any provision of this Section 9 hereof, the
Company shall be entitled to seek an injunction restraining such breach, but
nothing herein shall be construed as prohibiting the Company from pursuing
any additional remedies available to the Company for such breach or
threatened breach.
10. Representation by Counsel - Interpretation. Each of the
parties hereto acknowledge that it is being represented by counsel of its
choice in connection with this Agreement; that it is freely waiving any rights
or claims being waived by it pursuant to this Agreement; and that this
Agreement has been entered into by it freely and voluntarily and without
duress or coercion of any kind. In the interpretation of this Agreement,
whether by a court or otherwise, no weight or presumption shall be given
or ascribed by virtue of the drafting of this Agreement by one party or the
other; both parties shall be deemed to have contributed to the drafting of this
Agreement equally.
11. Governing Law - Jurisdiction. This Agreement shall be
construed in accordance with and governed by the laws of the State of
Delaware applicable to contracts executed in and to be performed solely
within such state. Each of the parties hereto agree that any disputes
hereunder shall be settled by a court of competent jurisdiction in such
jurisdiction that shall be chosen by the party filing an initial suit for the
enforcement or interpretation of any of the provisions hereof; the remaining
party agrees hereby to submit to the jurisdiction chosen by the filing party.
In no event may the chosen jurisdiction be a state or federal court situate
in any state other than Kansas, Delaware or New Jersey.
12. Notices. All notices required or permitted to be given by either
party hereunder, including notice of change of address, shall be in writing
and delivered by hand, or mailed, postage prepaid, certified or registered
mail, return receipt requested, to the other party as follows:
If to the Company: Systems & Services Technologies, Inc.,
c/o The Aegis Consumer Funding Group, Inc.
000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
With a copy to: The Aegis Consumer Funding Group, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxx Xxxx, X. J. 07310
Attention: Xxxx X. Xxxxxxx, Esq.
If to the Executive: Xxxx Xxxxxxxx
00000 Xxx
Xxxxxxxx Xxxx, Xxxxxx 00000
With a copy to: Xxxxxx X. Xxxxxxxxxxx, Esq.
Xxxxx Xxxx, LLP
3500 One Kansas City Place
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
13. Miscellaneous.
(a) Entire Agreement. This Agreement (together with any
agreement regarding options granted to the Executive to purchase securities)
constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes any and all prior oral or written
agreements and understandings; however, this Agreement shall not
supersede, diminish or modify any rights of the Executive under any
employee benefit plans of the Company. There are no oral promises,
conditions, representations, understandings, interpretations or terms of any
kind as conditions or inducements to the execution hereof or in effect
among the parties. This Agreement may not be amended, and no provision
hereof shall be waived, except by a writing signed by the Company and the
Executive, or in the case of a waiver, by the party waiving compliance
therewith, which states that it is intended to amend or waive a provision of
this Agreement. Any waiver of any rights or failure to act in a specific
instance shall relate only to such instance and shall not be construed as an
agreement to waive any rights or failure to act in any other instance,
whether or not similar.
(b) Further Acts. The parties hereto agree that, after the execution
of this Agreement, they will make, do, execute or cause to be made, done
or executed all such further and other lawful acts, deeds, things, devices,
conveyances and assurances in law whatsoever as may be required to carry
out the true intention and to give full force and effect to this Agreement.
(c) Severability. Should any provision of this Agreement be
held by a court of competent jurisdiction to be unenforceable or prohibited
by an applicable law, this Agreement shall be considered divisible as to
such provision, which shall be inoperative, and the remainder of this
Agreement shall be valid and binding as though such provision were not
included herein.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of, and be binding upon, the Company and any corporation with
which the Company merges or consolidates or to which the Company sells
all or substantially all of its assets, and upon the Executive and his
executors, administrators, heirs and legal representatives.
(e) Headings. All headings in this Agreement are for
convenience only and are not intended to affect the meaning of any
provision hereof.
(f) Counterparts. This Agreement may be executed in two or more
counterparts with the same effect as if the signatures to all such
counterparts were upon the same instrument, and all such counterparts shall
constitute but one instrument.
IN WITNESS WHEREOF, the Executive has executed this
Agreement and the Company has caused this Agreement to be executed by
its duly authorized officer as of the day and year first above written.
SYSTEMS & SERVICES TECHNOLOGIES, INC.
EXECUTIVE
By: _______________________________________
By:_____________________
Name: _______________________________________
Xxxx Xxxxxxxx
Title: _______________________________________
