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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED
AMENDED AND RESTATED EMPLOYMENT AGREEMENT made as of August 18, 2000 by
and between XXXXXXXX.XXX, INC., a Delaware corporation (the "Company"), and Xxxx
X. Xxxxxxx ,Xx. ("Employee").
WHEREAS, Employee 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 Employee'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 Employee hereby agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Employee, and
Employee hereby agrees to serve the Company, upon the terms and conditions
hereinafter set forth.
2. TERM. The employment of Employee by the Company pursuant to this
Agreement shall commence upon execution of this Agreement and shall expire on
October 1, 2005, unless sooner terminated as hereinafter provided (the "Term").
3. DUTIES. Employee shall be employed in the Company's "First Atlanta
Capital Markets" division, as may be renamed from time to time by the Company
(the "FACM Division" or the "Division"), and will serve as the Managing Director
in charge of the Division. The employee shall be responsible for those areas in
the conduct of the business reasonably assigned to him by the Company's Chief
Executive Officer or President. Employee shall devote substantially all his
business time and efforts to the business of the Company.
4. COMPENSATION AND OTHER PROVISIONS. Employee shall be entitled to the
compensation and benefits hereinafter described in subparagraphs (a) through (e)
(such compensation and benefits being hereinafter referred to as "Compensation
Benefits").
(a) COMPENSATION. Employee shall be entitled to an annual
salary, payable in equal monthly installments, as set forth on Schedules A and C
hereto, which shall be payable from and subject to Available Cash from Net
Operating Income of the Division, if any, as determined pursuant to the formulas
set forth on Schedules A and C hereto.
(b) ISSUANCE OF COMMON STOCK.
i) Upon commencement of the Term, 400,000 shares of
common stock of the Company (the "Shares") shall be
issued in the name of Employee; provided, that, such
Shares shall be subject to divestment and return to
the Company in the event and to the extent that
certain performance criteria and/or other employment
conditions relating to Employee as described in
Section 13 a) below and on Schedule B hereto shall
not be satisfied in full. In the event that said
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criteria and/or conditions shall not be fully
satisfied, the number of Shares to be returned to the
Company by Employee shall be determined in accordance
with the provisions of Section 13 a) below and the
formula set forth on Schedule B. Employee agrees that
in order to carry out the purposes of this Paragraph,
that all of the Shares shall be held in escrow by the
Company pursuant to the provisions of Section 13 a)
of this Agreement.
ii) On or about September 1, 2000, 1,279,722 shares of
common stock of the Company (the "Second Tranche
Shares") shall be issued in the name of Employee;
provided, that, such Shares shall be subject to
divestment and return to the Company in the event and
to the extent that certain performance criteria
and/or other employment conditions relating to
Employee as described in Section 13 b) below and on
Schedule D hereto shall not be satisfied in full. In
the event that said criteria and/or conditions shall
not be fully satisfied, the number of Shares to be
returned to the Company by Employee shall be
determined in accordance with the provisions of
Section 13 b) below and the formula set forth on
Schedule D. Employee agrees that in order to carry
out the purposes of this Paragraph, that all of the
Shares shall be held in escrow by the Company
pursuant to the provisions of Section 13 b) of this
Agreement.
iii) The Employee shall have unlimited piggyback
registration rights with respect to the Shares and
the Second Tranche Shares and one demand registration
right at Employee's cost. Notwithstanding the
registration the Shares and Second Tranche Shares
shall be subject to the terms and conditions of this
Agreement.
(c) PARTICIPATION IN BENEFIT PLANS. During the Term, Employee
shall be eligible to participate in all employee 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 employee benefit plans of the Company, if any, consistent
with those benefits provided to employees of similar position with the Company.
(d) OTHER PROVISIONS. Employee shall be reimbursed for all
reasonable and necessary expenses incurred by him in the performance of his
duties, subject to submission of supporting documentation reasonably
satisfactory to the Company.
(e) STOCK OPTIONS. Concurrent herewith, the Company and
Employee shall enter into a certain Stock Option Agreement pursuant to which the
Company will grant to Employee certain options to purchase common stock of the
Company upon such terms and conditions set forth therein.
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5. TERMINATION. Employee's employment hereunder shall terminate as a
result of any of the following events:
(a) Employee's death;
(b) Employee 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 months or an aggregate of five
months during any continuous nine month period
("Disability");
(c) termination by Employee;
(d) for Cause, where "Cause" shall mean: (i) any
defalcation or misappropriation by Employee of funds
or property of the Company or any of its affiliates
or the commission by Employee of any dishonest or
deceitful act during the course of his employment
with the Company; (ii) the breach by Employee of
Sections 9 or 10 of this Agreement; (iii) the
conviction of Employee of any felony, or a
misdemeanor involving fraud, dishonest conduct or
moral turpitude; (iv) the engaging by Employee in
personal illegal conduct which, in the reasonable
judgment of the Company, places the Company or any of
its affiliates, by association with Employee, in
disrepute; (v) the reasonable determination of the
Company's Board of Directors that Employee has
engaged in intentional misconduct, substantial
neglect of his duties, or has failed to follow
reasonable and lawful written directives of the Board
of Directors; or (vi) any attempt by Employee to
obtain a personal profit from any transaction in
which Employee has an interest adverse to the Company
unless such adverse interest and the potential profit
is disclosed in writing and delivered to and approved
by the Board in advance of such transaction including
any unauthorized compensation by Employee obtained in
connection with the Company's business or potential
business.
The Employee will be given the right to cure an
alleged "for cause" problem under 5 (d) (v) for a
period of 30 days from the date Company gives notice
of the conduct or performance giving rise to such act
of Cause; or
(e) Termination by the Company without Cause, in which
event the Company Paragraphs 10(a) and 10(b) shall be
null and void and all shares in escrow pursuant to
this Agreement shall be delivered to Employee and all
options granted to Employee shall immediately vest.
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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 the result of "Cause". Employee's
employment under this Agreement shall be deemed to
have terminated as follows: (i) if Employee's
employment is terminated pursuant to subparagraph (a)
above, on the date of his death; (ii) if Employee's
employment is terminated pursuant to subparagraph
(b), (d) or (e) above, on the date on which Notice of
Termination is given; and (iii) if Employee's
employment is terminated pursuant to subparagraph (c)
above, thirty (30) days after the date on which a
Notice of Termination is given, unless the Company
shall select a sooner date at its sole and absolute
discretion. The date on which termination is deemed
to have occurred pursuant to this paragraph is
hereinafter referred to as the "Date of Termination".
6. PAYMENTS ON TERMINATION. In the event that Employee's employment is
terminated pursuant to Section 5 above, the Company shall pay to Employee his
compensation under Section 4(a) above through the Date of Termination. In the
event that any placements or financings by the FACM Division completed prior to
the Date of Termination have residual fees which arise after the Date of
Termination, the Employee share be entitled to his share of such fees (cash and
non-cash) in the same proportion he would have received prior to such Date of
Termination.
7. LIFE INSURANCE. If requested by the Company, Employee 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 Employee for the benefit of the Company.
8. REPRESENTATIONS AND WARRANTIES. Employee represents and warrants to
the Company that he is under no contractual or other restriction or obligation
which 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 Employee 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 Employee during his employment
with the Company). Confidential Information includes, but is not limited to, (i)
technical knowledge, information and material such as trade secrets, processes,
formulas, data, know-how, strategies, analytical models, improvements,
inventions, computer programs, drawings, patents, and experimental and
development work techniques, and (ii) marketing and other information, such as
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supplier lists, customer lists, lists of prospective customers and acquisition
targets, 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 otherwise than
by breach of this Section 9 shall not constitute Confidential Information for
purposes of this Agreement.
(b) During the term of this Agreement and thereafter, Employee
agrees, to hold in confidence all Confidential Information and not to use such
information for Employee'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 Employee's work for the Company.
(c) Employee will abide by any and all security rules and
regulations, 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 rules
and regulations.
(d) Employee 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 if such document requires or
may require disclosure or other transfer of Confidential Information.
(e) Upon termination of employment, Employee will deliver to
the Company 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, Employee covenants and agrees that during the Term and for the one
(1) year period thereafter, Employee 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. Employee will undertake no
activities that may lead Employee to compete with or to acquire rival,
conflicting or antagonistic interests to those of the Company with respect to
the business of the Company, whether alone, as a partner, or as an officer,
director, employee, 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. This
Section 10(a) shall not be applicable in the event of Employee's termination
without Cause.
(b) During the Service Period and for a period of one (1) year
after termination of employment, Employee will not, directly or indirectly,
solicit or induce any other employee of the Company or any parent or affiliate
to leave his or her employment, or solicit or induce any consultant or
independent contractor to sever that person's relationship with the Company.
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(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
thereby 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) Employee acknowledges and agrees that the covenants
contained in Sections 10 and 11 hereof are of the essence in this Agreement,
that each of such covenants is reasonable and necessary to protect and preserve
the interests, properties, and business of the Company, and that irreparable
loss and damage will be suffered by the Company should Employee breach any of
such covenants. Employee further represents and acknowledges that he shall not
be precluded from gainful engagement in a satisfactory fashion by the
enforcement of these provisions.
11. AVAILABILITY OF INJUNCTIVE RELIEF. Employee 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. Employee 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 any anticipatory or continuing breach of
this Agreement or any part hereof, and is secured as an enforcement. 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 Employee's
termination of employment, irrespective of any investigation made by or on
behalf of any party.
13. FORFEITURE/ESCROW OF SHARES.
(a) All of the Shares shall be : (i) subject to
forfeiture in the event of the termination of
Employee's employment with the Company prior to
October 6, 2000, in which event all of the Shares
shall be returned to the Company and any Shares
remaining in Escrow at the time of such termination
shall be immediately returned to the Company; and
(ii) held in escrow until the Company's final
determination of Employee's Year 2000 Actual
Production (as such term is defined on Schedule B),
which shall be determined by the Company no later
than March 31, 2001. In the event that Employee's
Year 2000 Actual Production shall be less than
Employee's Year 2000 Projected Production (as defined
on Schedule B), then Employee shall return to the
Company a certain number of Shares to be determined
in accordance with the formula set forth on Schedule
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B. Accordingly, Employee hereby designates and
appoints the Chief Financial Officer of the Company
as his attorney-in-fact to immediately transfer and
assign to the Company on the books and records of the
Company all or any portion of the Shares as the
Company shall determine are subject to return
pursuant to the application of this section and/or
Schedule B hereto, without further authority or other
action on the part of Employee, and to do any and all
other acts necessary in connection therewith to
accomplish such purpose. In addition, in order to
assist in carrying out the foregoing, Employee shall
concurrent herewith execute in blank and deliver to
the Company a Stock Power in the form attached hereto
as Exhibit A.
(b) All of the Second Tranche Shares shall be held in
escrow by the Company until: (i) the termination of
Employee's employment with the Company prior to
December 31, 2002 , in which event any Second Tranche
Shares remaining in escrow at the time of such
termination shall be immediately returned to the
Company; or (ii) the Company's final determination of
Employee's Year 2002 Actual Production (as such term
is defined on Schedule D), which shall be determined
by the Company no later than March 31, 2003. In the
event that Employee's Year 2002 Actual Production
shall be less than Employee's Year 2002 Projected
Production (as defined on Schedule D), then Employee
shall return to the Company a certain number of
Second Tranche Shares to be determined in accordance
with the formula set forth on Schedule D.
Accordingly, Employee hereby designates and appoints
the Chief Financial Officer of the Company as his
attorney-in-fact to immediately transfer and assign
to the Company on the books and records of the
Company all or any portion of the Second Tranche
Shares as the Company shall determine are subject to
return pursuant to the application of this section
and/or Schedule D hereto, without further authority
or other action on the part of Employee, and to do
any and all other acts necessary in connection
therewith to accomplish such purpose. In addition, in
order to assist in carrying out the foregoing,
Employee shall concurrent herewith execute in blank
and deliver to the Company a Stock Power in the form
attached hereto as Exhibit B.
14. PAYMENT IN LIEU OF NON-COMPETITION.
(a) Provided that Employee shall not be terminated for
"cause" prior to January 1, 2001 or in breach or
violation of this Agreement, if after January 1, 2001
and during the Term, Employee elects pursuant to
delivery of written notice to the Company to
terminate his employment with the Company (the
"Notice Date"), then Employee may within 15 days
following the Notice Date elect to terminate the
non-competition provisions of Section 10(a) of this
Agreement by either returning a certain number of
Shares to the Company or making a cash payment to the
Company equal to said number of Shares multiplied by
$ 2.25 per share (i.e., the closing price of the
Company's common stock on the date of this
Agreement). The number of Shares to be returned to
the Company in consideration for the termination of
Employee's non-competition obligations shall be
determined as follows: (i) if the Notice Date is on
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or after January 1, 2001 but prior to January 1,
2002, then 200,000 Shares; (ii) if the Notice Date is
on or after January 1, 2002 but prior to January 1,
2003, then 100,000 Shares; and (iii) if the Notice
Date is on or after January 1, 2003 but prior to
January 1, 2004, then 60,000 Shares.
(b) Provided that Employee shall not be terminated for
"cause" prior to October 1, 2002 or in breach or
violation of this Agreement, if after October 1, 2002
and during the Term, Employee elects pursuant to
delivery of written notice to the Company to
terminate his employment with the Company (the
"Notice Date"), then Employee may within 15 days
following the Notice Date elect to terminate the
non-competition provisions of Section 10(a) of this
Agreement by either returning a certain number of
Second Tranche Shares to the Company or making a cash
payment to the Company equal to said number of Second
Tranche Shares multiplied by $2.25 per share. The
number of Second Tranche Shares to be returned to the
Company in consideration for the termination of
Employee's non-competition obligations shall be
determined as follows: (i) if the Notice Date is on
or after October 1, 2002 but prior to October 1,
2003, then 639,861 Second Tranche Shares; (ii) if the
Notice Date is on or after October 1, 2003 but prior
to October 1, 2004, then 319,931 Second Tranche
Shares; and (iii) if the Notice Date is on or after
October 1, 2004 but prior to October 1, 2005, then
191,958 Second Tranche Shares.
15. 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.
16. 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 Employee: Xxxx X. Xxxxxxx, Xx.
0000 Xxxxxxxxxxx xxxxx
Xxxxxxxx Xx 00000
If to the Company: xXxxxxxx.xxx, Inc.
0000 XXX Xxxx., Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: President
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with a copy to: Xxxxxx X. Xxxxxxx, Esq.
Steel Xxxxxx Xxxxx
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
17. 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.
18. 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 Employee and his heirs and personal representatives, and
shall be binding upon and inure to the benefit of the Company, its successors
and assigns.
19. 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.
20. 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 Broward County, Florida.
21. 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.
22. ARBITRATION. Any controversy or claim arising out of, or related to
this Agreement, or breach thereof, shall be settled by binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association sitting in Miami, Florida. Any judgment or award rendered by such
arbitrator(s) may be entered into with a court of competent jurisdiction as a
final judgment and adjudication.
23. 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.
24. ATTORNEYS' FEES. In the event any dispute or litigation arises
hereunder between any of the parties hereto, the prevailing party shall be
entitled to all reasonable costs and expenses incurred by it in connection
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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.
25. CHANGE IN CONTROL. In the event there is a change of control of the
Company, all shares held in escrow pursuant to this Agreement and all unvested
options shall immediately vest and be payable to Employee. In the event of a
"Change of Control" or a sale of all or substantially all of the assets of the
Corporation, then all non-vested Options shall immediately vest. For purposes of
this Agreement, "Change of Control" shall mean (i) the occurrence of any event
or transaction or series thereof pursuant to which any person or group (as used
in Rule 13(d)-1 of the Securities Exchange Act of 1934, acquires beneficial
ownership or control in excess of fifty percent (50%) of the outstanding voting
shares of the Company, or (ii) that the directors of the Company as serving on
its Board of Directors on the date immediately preceding such event or
transaction or series thereof shall, in the aggregate, represent less than fifty
percent (50%) of the Board of Directors after such event or transaction or
series thereof.
26. TAXES. Employee acknowledges that the Shares and Second Tranche
Shares constitute consideration to the Employee or shall otherwise be deemed
compensation. Employee agrees that he shall be responsible for, and shall make
prompt payment of, any and all individual federal, state and local taxes
including, without limitation, withholding taxes due or arising from his receipt
of such Shares and Second Tranche Shares, as required pursuant to applicable tax
laws. Employee shall indemnify the Company for any penalties, interest or costs
incurred by the Company directly arising form Employee's non-payment of such
taxes as required pursuant to applicable law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first hereinabove written.
EMPLOYER:
XXXXXXXX.XXX, INC., a Delaware corporation
By:
---------------------------------------
Title:
-------------------------------------
EMPLOYEE:
---------------------------------------------
Xxxx X. Xxxxxxx, Xx.
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SCHEDULE A
SALARY:
DIVISION AVAILABLE CASH AND NON-CASH COMPENSATION:
The determination of Available Cash from Net Operating Income of the FACM
Division of the Company ONLY FROM THOSE TRANSACTIONS DESCRIBED IN SCHEDULE A-1
ATTACHED HERETO (hereinafter called the "Division Available Cash") shall be
determined in accordance with the following business rules:
1. The calculation of Division Available Cash will be made by the Company on a
monthly basis not later than the 15th day of the each month for the
preceding calendar month.
2. Employee shall have the right, during reasonable business hours, to meet
with representatives of the Company concerning this calculation and shall
have reasonable access to books and records of the Company to validate the
calculations.
3. The formula for the calculation of the "FACM Division Available Cash" shall
be the following:
+FACM DIVISION ATTRIBUTED CASH REVENUES
- CORPORATE ALLOCATION
- FACM DIVISION EXPENSES
- REASONABLE RESERVES
= FACM DIVISION AVAILABLE CASH
Where,
"FACM DIVISION ATTRIBUTED CASH REVENUES" means 100% of the cash
receipts during the month of fees, or other income streams (INCLUDING
WARRANTS AND STOCK), attributable to FACM Division work (less referral
fees, finders fees and fee sharing to third parties or affiliates of
the Company).
"CORPORATE ALLOCATION" shall mean 20% of the FACM Division Attributed
Cash Revenues.
"FACM DIVISION EXPENSES" shall mean direct and indirect expenses
reasonably allocated by the Company for the operations of the FACM
Division including, but not limited to, salaries, taxes, allocable
rent, utilities, phone, etc. (BOOKKEEPING AND ACCOUNTING WILL BE
COVERED BY THE COMPANY)
"REASONABLE RESERVES" shall mean, in the context of current facts and
circumstances, the appropriate reserve of not less than two months
based on recurring monthly expenses of the FACM Division for future
contingencies and demands on cash resources attributable to the
operations of the FACM Division.
4. It is agreed that all salaries and bonuses for employees of the FACM
Division will be paid from FACM Division Available Cash.
5. It is the intention of all parties that all distributions of FACM Division
Available Cash shall be made on a cumulative basis such that periods of
operating loss for the Division, resulting in negative FACM Division
Available Cash, are first offset in full against periods of positive FACM
Division Available Cash.
6. Eighty percent (80%) of all cash and non-cash compensation paid to the FACM
Division shall be allocated and paid to the employees of the FACM Division
as determined by the mutual agreement of the Company and Employee (or the
principal executive officer of the FACM Division in the event Employee is
not an employee of the FACM Division).
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SCHEDULE B
DIVESTMENT AND RETURN OF SHARES
1. For purposes hereof, Employee's "Year 2000 Projected Production" shall
mean that Employee shall have generated and be attributed to the FACM
Division Attributed Cash Revenues of $1,400,000.
2. For purposes of this Schedule B, Employee's "Year 2000 Actual
Production" shall mean that the actual amount of FACM Division
Attributed Cash Revenues that shall be generated by and attributed to
Employee for the twelve months ending February 15, 2001, as determined
by the Company and the FACM Division in accordance with its reasonable
and customary policies and procedures and consistent with the
calculations set forth in Schedule A.
3. In the event that Employee's Year 2000 Actual Production shall equal or
exceed his Year 2000 Projected Production, then the Company shall
release to Employee from escrow all 400,000 Shares.
4. In the event that Employee's Year 2000 Actual Production shall be less
than his Year 2000 Projected Production, then Employee shall be
divested of and shall return to the Company that number of Shares to be
determined as follows:
Number of Shares to be returned shall be equal to (i) one MINUS the quotient of
Employee's Year 2000 Actual Production DIVIDED by Year 2000 Projected
Production, (ii) MULTIPLIED by 400,000 Shares.
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EXHIBIT A
STOCK POWER
FOR VALUE RECEIVED, XXXX X. XXXXXXX, XX. hereby sells, assigns and
transfers unto XXXXXXXX.XXX, INC., a Delaware corporation (the "Corporation"),
Four Hundred Thousand (400,000) shares of common stock of said Corporation,
standing in his name on the books of said Corporation, and does hereby
irrevocably constitute and appoint X. Xxxx Xxxxx, as attorney to transfer the
said stock on the books of said Corporation with full power of substitution in
the premises.
Effective Date: December 17, 1999.
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Xxxx X. Xxxxxxx, Xx.
Satisfaction of Paragraph 3 of Schedule B -
Escrow is Hereby Released as of
November 10, 2000
xXxxxxxx.xxx, Inc.
By:
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Authorized Representative
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SCHEDULE C
SALARY:
DIVISION AVAILABLE CASH AND NON-CASH COMPENSATION:
The determination of Available Cash from Net Operating Income of the FACM
Division of the Company EXCLUDING REVENUES OR EARNINGS FROM THOSE TRANSACTIONS
DESCRIBED IN SCHEDULE A-1 ATTACHED HERETO (hereinafter called the "Division
Available Cash") shall be determined in accordance with the following business
rules:
1. The calculation of Division Available Cash will be made by the Company on a
monthly basis not later than the 15th day of the each month for the
preceding calendar month.
2. Employee shall have the right, during reasonable business hours, to meet
with representatives of the Company concerning this calculation and shall
have reasonable access to books and records of the Company to validate the
calculations.
3. The formula for the calculation of the "FACM Division Available Cash" shall
be the following:
+FACM DIVISION ATTRIBUTED CASH REVENUES
- CORPORATE ALLOCATION
- FACM DIVISION EXPENSES
- REASONABLE RESERVES
= FACM DIVISION AVAILABLE CASH
Where,
"FACM DIVISION ATTRIBUTED CASH REVENUES" means 100% of the cash
receipts during the month from fees, retainers or other income streams
plus 100% of of the non-cash compensation (INCLUDING, WITHOUT
LIMITATION WARRANTS, STOCK OPTIONS AND STOCK OR SECURITIES),
attributable to FACM Division work (less referral fees, finders fees
and fee sharing to third parties or affiliates of the Company).
"CORPORATE ALLOCATION" shall mean 35% of the FACM Division Attributed
Cash Revenues.
"FACM DIVISION EXPENSES" shall mean direct and indirect expenses
reasonably allocated by the Company for the operations of the FACM
Division including, but not limited to, salaries, taxes, allocable
rent, utilities, phone, etc. It is agreed that the monthly "indirect"
expenses of the Company allocable to the FACM Division shall not be
greater $500.00.
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"REASONABLE RESERVES" shall mean, in the context of current facts and
circumstances, the appropriate reserve of not less than two months
based on recurring monthly expenses of the FACM Division for future
contingencies and demands on cash resources attributable to the
operations of the FACM Division.
4. It is agreed that all salaries and bonuses for employees of the FACM
Division not otherwise paid by the Company pursuant to Paragraph 7 of this
Schedule C shall be paid from FACM Division Available Cash.
5. It is the intention of all parties that all distributions of FACM Division
Available Cash shall be made on a cumulative basis such that periods of
operating loss for the Division, resulting in negative FACM Division
Available Cash, are first offset in full against periods of positive FACM
Division Available Cash.
6. FACM Division Available Cash shall be allocated and paid to the employees
of the FACM Division as determined by the mutual agreement of the Company
and Employee (or the principal executive officer of the FACM Division in
the event Employee is not an employee of the FACM Division).
7. For each of the twelve (12) month periods ending September 30, 2001 and
September 30, 2002, respectively, the Company agrees to expend up to
$400,000 towards new employee base salaries, advertising costs, direct
overhead expansion and marketing costs of the FACM Division. In the event
the Company does not expend $400,000 for the twelve (12) month period
ending September 30, 2001, then any unspent portion shall carry over for
the twelve (12) month period ending September 20, 2002.
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SCHEDULE D
DIVESTMENT AND RETURN OF SHARES AND GRANT OF ADDITIONAL OPTIONS
1. For purposes hereof, "Year 2001 Projected Production" shall mean that
the FACM Division shall have generated and be attributed to the FACM
Division Attributed Cash Revenues of $6,500,000 and Employee's "Year
2002 Projected Production" shall mean that the FACM Division shall have
generated and be attributed to the FACM Division Attributed Cash
Revenues of $6,500,000.
2. For purposes of this Schedule D, "Year 2001 and Year 2002 Actual
Production" shall mean that the actual amount of FACM Division
Attributed Cash Revenues that shall be generated by and attributed to
the FACM Division for the thirteen and twelve months ending September
30, 2001 and September 30, 2002, respectively, as determined by the
Company and the FACM Division in accordance with its reasonable and
customary policies and procedures and consistent with the calculations
set forth in Schedule C. FOR PURPOSES OF THIS SCHEDULE, THE PARTIES
AGREE THAT CASH REVENUES WHICH ARISE AS A RESULT OF ACQUISITIONS BY THE
COMPANY BUT WHICH ARE INCLUDED ATTRIBUTED TO THE FACM DIVISION FOR
PURPOSES OF SCHEDULE C, SHALL BE INCLUDED AS "ACTUAL PRODUCTION."
3. In the event that Year 2001 Actual Production shall equal or exceed his
Year 2001 Projected Production, then the Company shall release to
Employee from escrow, 639,861, representing Fifty Percent (50%) of the
Second Tranche Shares. In the event that Year 2002 Actual Production
shall equal or exceed his Year 2002 Projected Production, then the
Company shall release to Employee from escrow, 639,861, representing
Fifty Percent (50%) of the Second Tranche Shares.
4. In the event that Year 2001 Actual Production shall be less than his
Year 2001 Projected Production, then Employee shall be divested of and
shall return to the Company that number of Shares to be determined as
follows:
Number of Shares to be returned shall be equal to (i) one MINUS the
quotient of [15% of the first $2,600,000 plus 35% of balance of Year
2001 Actual Production] DIVIDED by $1,755,000, (ii) MULTIPLIED by Fifty
Percent (50%) of the Second Tranche Shares.
In the event that Year 2002 Actual Production shall be less than his
Year 2002 Projected Production, then Employee shall be divested of and
shall return to the Company that number of Shares to be determined as
follows:
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Number of Shares to be returned shall be equal to (i) one MINUS the
quotient of [15% of the first $2,600,000 plus 35% of balance of Year
2001 Actual Production] DIVIDED by $1,755,000, (ii) MULTIPLIED by Fifty
Percent (50%) of the Second Tranche Shares.
5. For purposes of this Schedule D, in the event the Company RE-ASSIGNS
EMPLOYEE TO WORK IN ANOTHER GROUP OR DIVISION OF THE COMPANY, then any
unvested Second Tranche shares which could become available to Employee
in the year in which such re-assignment takes place shall immediately
be released from the Escrow.
6. The Company hereby agrees to grant to Employee on August 18, 2000 an
option to purchase 100,000 shares of the Company's common stock at a
per share exercise price equal to $2.625, the closing stock price on
August 18, 2000 of the Company's common stock multiplied by 120% (the
"Options'). The Options shall vest equally over a 4 year period with
the first 25,000 Options vesting August 18, 2001. The common shares
underlying the Options shall have standard piggy back registration
rights.
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EXHIBIT B
STOCK POWER
FOR VALUE RECEIVED, XXXX X. XXXXXXX, XX. hereby sells, assigns and
transfers unto XXXXXXXX.XXX, INC., a Delaware corporation (the "Corporation"),
One Million Two Hundred and Seventy Nine Thousand Seven Hundred and Twenty Two
(1,279,722) shares of common stock of said Corporation, standing in his name on
the books of said Corporation, and does hereby irrevocably constitute and
appoint X. Xxxx Xxxxx, as attorney to transfer the said stock on the books of
said Corporation with full power of substitution in the premises.
Effective Date: August 18, 2000.
------------------------
Xxxx X. Xxxxxxx, Xx.
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